Monday, 7 November 2016

Brexit: Did The High Court Get It Wrong?

Lion and unicorn fighting for the crown
Two top law bloggers have weighed in against the recent High Court case brought by Gina Miller to settle the question as to whether or not Parliament should first pass an Act to trigger Article 50 to get us out of the EU. The High Court ruled for Parliamentary sovereignty, but per legal bloggers Carl Gardner, Thomas Fairclough, and Mark Elliott the court got it wrong. Let's take a look at why they disagree.

Carl Gardner: It doesn't change the law of the land

Carl Gardner QC was a government lawyer who has worked in the Cabinet Office and advised on the EU Constitution negotiations and at the Attorney General's office for Lord Goldsmith. He is currently a writer, lecturer, and consultant, so he's eminently qualified to write on this subject and his opinions, whether you agree with them or not, are well worth taking into consideration. In a post written shortly after the referendum, Article 50, and UK constitutional law, he provides a simple guide to how the referendum works and the limits of what it can do; basically, it's not legally binding and to suggest it is means you haven't a clue.

The referendum doesn't take us out of the EU by itself

He also points out that the referendum alone doesn't "trigger" Article 50, we have to provide formal written notice that we're leaving. In brief:

In terms of domestic constitutional law, the government may choose to ask Parliament to vote in favour of article 50 notification—but there is no legal or constitutional requirement on it to do so. Notification would be (in domestic law terms) be done under prerogative powers in relation to international affairs, rather than any statutory authority. The government can just go ahead and do it.

...It’s up to the British government alone whether and when to “trigger” article 50. It may ask for Parliament’s approval, but isn’t legally required to. What Parliament can do is force the government to resign or force an election. - Article 50, and UK constitutional law, by Carl Gardner for Head of Legal

In a more recent post which reflects on the High Court judgement he repeats his earlier assertions.

the High Court thinks triggering article 50 would change the law in this country, and that no change to the law of any kind can be made by doing so. - Why the High Court got the law wrong about Brexit, by Carl Gardner for Head of Legal

The law includes rights enjoyed by EU citizens including

...equal pay or working time restrictions that can be replicated nationally.

Carl says this is "unproblematic" because

...there might be a “soft Brexit” in which many of those rights are actually retained. 

And pigs might fly, Carl. They're not too keen on us leaving, remember, and as you pointed out in your own blog post on the constitutional requirements for triggering Article 50, we're not in the driving seat at the negotiations, the EU is. They will ultimately decide on how hard Brexit, is; we can only accept or reject the proposals presented to us.

Thomas Fairclough: The role of the Royal Perogative

Law professor Thomas Fairclough explains the extent of the Royal Perogative thus:

...the Royal Prerogative allows the Government, on the Sovereign’s behalf, to conduct foreign affairs and enter into international treaties but these treaties only have any direct domestic application because Parliament (through an Act) intends it to be so. - Article 50 and the Royal Prerogative, by Thomas Fairclough for the UK Constitutional Law Association blog

And per the report he cites when discussing this the usage of the Perogative powers is subject to Parliamentary scrutiny.

The Government has to answer to Parliament nonetheless

He argues further:

The use of the Royal Prerogative in initiating Article 50 will not repeal or modify the ECA. That is undoubtedly for Parliament to do. All it would do is alter the Treaties at the international level to remove the United Kingdom from its international obligations.

He then goes off the rails a bit by waving away the loss of rights via Brexit, saying,

There could be a Treaty change, for example, that abolishes the European Parliament. This would, on a strict analysis, only require assent from the United Kingdom via the Royal Prerogative and not from Parliament, despite the loss of a democratic “right”.

So let's not worry our pretty little heads about the prospect of the loss of equal pay, etc., eh, Tom? He concludes:

We negotiated and joined the European Union through the Royal Prerogative, and we will negotiate and leave the European Union through the same. That is not to say that Parliament has no role... Nothing in this piece is to detract from that; all it seeks to do is locate each branch of the state in its proper setting.

This directly contradicts the High Court judgement that says that Parliament got us in via the ECA and Parliament will get us out by repealing the Act. Whether this is correct or not, Parliament will surely have to be involved at some point in the proceedings, a point on which they all agree.

Mark Elliott: the ECA did not displace the Royal Perogative

Law professor Mark Elliott has three contentions that overlap with the two already mentioned here, so I'll focus on the third;

...the European Communities Act 1972 (‘ECA’) should not be read as having relevantly displaced the executive’s prerogative authority to trigger Article 50. - Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union, by Mark Elliott and Hayley J Hooper for Public Law For Everyone

The High Court's contention was that the passing of the ECA in 1972 brought EU law to bear on our own legal system, which means that this is the means by which we joined the EU. The fact that Parliament ratified the treaty didn't make the laws our own, it was the passing of the ECA that made that happen. That said, Mark contends that

Triggering Article 50 will do no more than initiate the negotiation process on the diplomatic (and international) plane, the outcome of which cannot be known.

Actually, it sets the timer ticking for two years, after which, whether there's a withdrawal agreement in place or not, we're out. Mark then quibbles about the possibility of changing our minds about leaving as a reason for not worrying about the loss of rights granted us by EU law. This assumes a best case scenario: that we won't actually Brexit after all following an eleventh hour change of mind. It doesn't actually deal with what happens if we do leave the EU with no agreement in place.

Do Parliament and the Government work independently of each other?

He continues,

EU law has no legal status or effect in the UK separate from that provided for by domestic legislation.

...Those rights, as treaty-based, EU law rights, are therefore not the form of rights to which the limitations upon the prerogative apply.

So then, Mark, let's get this straight: we incorporate EU law into domestic law in order to meet our international obligations according to treaties signed and sealed by the Government, right? These are then ratified by Act of Parliament, right? These impact domestic law but because they have been "adopted" via Act of Parliament, the Act of passing an Act somehow removes them from direct EU influence and makes them wholly ours, right? If I've got this right so far, it means that the moment Parliament passes an Act the Perogative can't be applied except to make alterations to a treaty, which might then require another Act to adopt as domestic law. So what you're saying here, Mark, is that the Government is independent of Parliament, and vice versa. It's not that one trumps the other, they are parallel institutions feeding into each other, or something. And there I was thinking it's Parliament's job to keep the Government in check by holding it accountable.

The Perogative gives the Government room to manoeuvre...

The whole point of the Perogative, as Mark points out, is to give the government the flexibility it needs to negotiate treaties and carry out the necessary tasks involved in foreign affairs. I accept that it's a bit ridiculous to expect the Government to lay every task before Parliament and get them to vote on it, fair enough. And I accept that the ECA doesn't actually stop the Government from negotiating treaties on our behalf.

...but that's a lot of power to give this shower

However, I take issue with the idea that the Government can, without consulting Parliament first, simply hand in a notice to quit to Donald Tusk and thereby push the stop-clock button and leave it counting down till we're out of the EU. That assumes that Boris Johnson et al are capable of getting us the best possible deal before the timer runs out. Based on recent developments I don't share Mark's confidence. I do like the idea of Parliament as a check on the Government. Mark actually does give this idea a nod:

There are, of course, many ‘background’ — or ‘fundamental’ — constitutional principles. Among them must be the sovereignty of Parliament, the rule of law, and the separation of powers.

Okay, but how does Parliament get to be sovereign if it's being told to run along and not worry its pretty little head about what the Government is doing with our future?

Parliament is in fact sovereign-ish

Mark goes on,

It is well known that an Act of Parliament which is clearly in the same subject area as the prerogative displaces the executive’s power. [Emphasis is mine.] In Fire Brigades Union the House of Lords held that it was unlawful for the Minister to use the royal prerogative to enact his preferred compensation scheme where an Act of Parliament already existed in this area and created a clear duty on the part of the Minister to exercise the power as Parliament intended.

but immediately walks it back, stating that Parliament didn't clarify what the process would be if we decided to exit the EU. If there is no stated will of Parliament, he argues, nothing is being frustrated, so what's the problem? He then points out that though the referendum was advisory, the result was to leave the EU, so leave we must. Okay, fine; that's not at issue. We just want Parliament to be involved in the negotiating process given that Our Glorious Leaders are clueless cretins who seem to think we're still a mighty empire. We're not. I'd rather not leave it all up to them. Mark ends by effectively saying that the Government is sovereign via its Perogative to negotiate for us in trade deals and that the court pretty much ignored that all the way through the judgement.


These three law bloggers have provided an interesting alternative dimension to the debate about Miller. They have confirmed that Miller doesn't affect the actual triggering of Article 50 it just specifies who ought to do it and advises that an Act of Parliament may be required prior to sending our notice in; Parliament should at least be consulted before this is done.

They have also pointed out that triggering Article 50 doesn't repeal the ECA, that's Parliament's job. It'd be funny, though, if Parliament left the ECA in place after the timer on Article 50 ran out, and conversely, if Parliament repealed the ECA after the Government had a change of heart about leaving the EU.

The upshot appears to be that each of the two institutions has its own sovereignties; Parliament's trumps the Government where domestic legislation is concerned and the Government trumps Parliament's where foreign affairs, among other things (any area that requires a degree of nimbleness), is concerned. Where these overlap there is friction and ultimately it is up to the Supreme Court to decide which one is on top, regardless of the fact that usage of the Perogative is subject to Parliamentary scrutiny anyway. Meanwhile, Prime Minister Theresa May intends to trigger Article 50 in March — unless the right wing press have a sudden change of heart. Watch this space.

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