Legal News

Mucking along doesn’t always work. We pride ourselves in the United Kingdom on thriving without a written constitution or code. We are better than that apparently, a nation of pragmatists and deal-makers, unfettered by text. The powers of the legislature, the executive and the judiciary are balanced by a series of precedents and ‘Gentlemen’s Agreements’ (conventions). The events of 23 June have jerked us out of our smuggery. No-one knows what to do. There is no precedent. It is up for grabs. Article 50 of the Treaty on the European Union (‘TEU’) allows any member state to withdraw from the Union ‘in accordance with its own constitutional requirements.’ Meanwhile, Theresa May has announced that Article 50 will be triggered by the end of March 2017. Can she be so sure?

One of the legal challenges spawned by Brexit was launched by ‘The People’s Challenge’ a crowd-funded group instructing Bindmans, who are in turn instructing Helen Mountfield QC, at Matrix Chambers. According to their skeleton argument, ‘The People’s Challenge’ raised funds from around 2,000 UK and EU citizens who live in the UK. The bid from ‘The People’s Challenge’, brought against the Secretary of State for Exiting the European Union (David Davis), is that Article 50 should not be triggered by the UK Government until ‘it has been properly authorised to do so by an act of parliament’. They argue that only Parliament can ‘decide’ to leave the EU for the purposes of Article 50 TEU; and that the UK Government may only ‘notify’ such a decision to the European Council after Parliament’s decision.

The Judicial Review brought by ‘The People’s Challenge’ [Gina Miller & Ors v Secretary of State for Exiting the European Union CO/3809/2016, CO/3281/2016] is to be heard in the High Court on 13 and 17 October and with an anticipated ‘leapfrog’ appeal expected to be heard by the Supreme Court before Christmas.

The claimants of ‘The People’s Challenge’ submit that the triggering of Article 50 will affect the statutory rights of UK citizens. As the foundational EU case of Van Gend en Loos (1963) clarifies, EU law has conferred upon EU citizens ‘rights which become part of their legal heritage’. The UK Government cannot simply exercise royal prerogative in an act which will result in the repudiation of those rights. The UK Government must acquire statutory authorisation from Parliament to do this.

In the interests of ‘open justice’, High Court Judge Mr Justice Cranston ruled on Tuesday 27 September that the UK Government must publish its previously secret arguments as to why Article 50 may be triggered without any parliamentary assent. These arguments are now publically available. In a kaleidoscope of jargon, the Government submits that the triggering of Article 50 is a ‘polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of ministers and their officials are particularly well-suited and the courts ill-suited’.

The UK Government argues that for the courts to compel the Secretary of State to introduce legislation into Parliament would amount to ‘trespass’. This misses the point. The courts will not be deciding whether or not Article 50 should be triggered. The courts will decide on how Article 50 would be triggered. The courts clearly are the competent authority to make findings on this.

The Attorney General Jeremy Wright MP, the silk leading the UK Government’s case, has said that this challenge has no ‘legal merit’ and in its grounds, the UK Government argues that it is ‘constitutionally impermissible’ for Parliament to be involved in deciding when and how Article 50 should be triggered. This is an absurd position to take. As Geoffrey Robertson QC made clear soon after the referendum, Parliament must repeal the 1972 European Communities Act, which brought the UK into (the then) European Economic Community, before Article 50 can be triggered.

However the UK Government argues that the triggering of Article 50 falls within the remit of royal prerogative, exercisable without any legislative authorisation. Royal prerogative, they argue, is exercised in foreign affairs and the signing of treaties. The claimants, however, assert that royal prerogative is a ‘residual’ power, and can only be relied upon in such ‘fields’ of authority which have not been occupied by Parliament. The field of EU law, they argue, has been occupied by Parliament. The latter argument seems more convincing, as the treaties of the EU created a ‘new legal order’ (Van Gend en Loos), and the legislation of the European Communities Act 1972 brought us into the EU. It is worth reflecting on the fact that it is now considered a convention for Parliament to be consulted when waging war (according to the House of Lords Constitution Committee). Is not leaving the EU of least equal constitutional significance to waging war?

The UK Government also argues that Parliament ‘clearly understood’ that it was surrendering any role it might have in Brexit, ‘and that was the basis on which the electorate voted in the referendum’. On the contrary; in passing the EU Referendum Act 2015, Parliament did not legislate itself out of the Brexit process, it merely consented to the holding of an advisory referendum; effectively an opinion poll . Parliament can make a referendum legally binding, as it did with in the 2011 Alternative Vote Referendum, but it did not do so here. As the House of Lords Constitution Committee found in their report published on 13 September, both the act and the referendum were silent on when and how withdrawal from the EU should take place . It is worth asking: would a majority of voters have voted for a hard Brexit, towards which our Prime Minister is now leaning? Or might such a prospect have just tipped the majority of voters in favour of Remain? The UK Government cannot be allowed to have a carte-blanche in this massive constitutional upheaval.

In three short paragraphs in the grounds, the UK Government dismisses the devolved legislatures of Northern Ireland, Scotland and Wales as having ‘no competence’ over the triggering of Article 50 on the basis that it is a matter of ‘foreign relations’. It might well be argued however that the influence of our membership of the EU extends well into the domestic sphere. This is a controversial and largely untested constitutional area, again built on ‘Gentlemen’s Agreements’ (such as the Sewel Convention), but whatever the legal arguments deployed, the UK Government’s willingness to trample rough-shod over the expressed will of the majority of voters in Scotland and Northern Ireland is undemocratic and certainly not ‘gentlemanly’. This is not deal-making, this is an imposition.

During the campaign, the campaigners for Leave trumpeted the importance of preserving Parliamentary sovereignty against ‘the unelected officials in Brussels’. The Defendant himself, David Davis, recently proclaimed that leaving the EU ‘will put the sovereignty and supremacy of this Parliament beyond doubt’ . The irony of the same Brexiteers now attempting to bypass Parliament would be amusing if it was not sickening. Many legal commentators suspect that the Supreme Court will be slow to interfere in this process, as it is perceived to be constitutionally improper to require Parliament to legislate on a matter of government policy. However leaving the EU cannot be perceived merely as matter of policy, or even, as the UK Government put in their grounds, ‘of the highest policy’; it is a fundamental shift in our constitutional arrangement.

In their skeleton argument, ‘The People’s Challenge’ are keen to emphasise that ‘this litigation is not about whether or not the UK should decide to withdraw from the EU’. Indeed, it may legitimately be argued that MPs now have a duty to follow the expressed will of the 51.9% of those who voted in the EU Referendum; but this issue is bigger than Brexit. As the House of Lords Constitution Committee held in its report, ‘it would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval – particularly one with such significant long-term consequences.’

About the author: Patrick Page

Patrick joined Duncan Lewis as a caseworker in the Public Law department at Duncan Lewis' Harrow office. He specialises in immigration and asylum law and has been accredited as Level 1 Probationer Immigration caseworker.