Brexit and the courts

Do we need to enact legislation before triggering article 50?

Any member state may decide to withdraw from the union in accordance with its own constitutional requirements, says article 50(1) of the Treaty on European Union (TEU). What could be simpler? If you lived in any other EU member state, you would simply pick up a copy of the constitution and look up treaties in the index.

But not in the UK. The two most senior judges in England and Wales – plus a third appeal judge who spent half his time at the bar advisng the Labour government – are currently trying to decide what the UK’s uncodified constitution requires for withdrawal from the EU. Must there be legislation? Or are the government’s executive powers sufficient? And whatever the High Court says, the Supreme Court – with perhaps as many as nine or 11 judges – will wade through it all again in December.
An act of parliament will certainly be needed a couple of years or so down the line for Brexit to take effect. But far from being a great repeal bill, the legislation promised by the prime minister this month will actually enact vast swathes of EU regulations that are currently in force solely because of European law. Only then can individual laws be amended or repealed.

What is being considered in the High Court today, though, is whether an act of parliament needs to be passed before the UK can notify the European Council under article 50(2) of the TEU that it intends to withdraw from the union. Lord Pannick QC, for the lead claimant Gina Miller, says legislation is needed. The attorney general Jeremy Wright QC, representing the Brexit secretary David Davis, says it is not. In any event, the government adds, this is not a matter for the courts.

Pannick’s starting point is the European Communities Act 1972, which was passed to give effect in the UK to what is now called EU law. The rights it gives people in the UK were granted by parliament, says Pannick, and only parliament can take them away.

That is challenged by the government, which says that giving notice under article 50(2) is no more than an ‘administrative step on the international law plane’. If that is true, then ministers could achieve their objectives using prerogative powers. These have been described as ‘the residue of discretionary powers left at any moment in the hands of the Crown’. And the Crown, for these purposes, means the government – because the Queen always acts on the advice of her ministers.

But, says Pannick, prerogative powers may not be validly exercised where they would frustrate or substantially undermine rights and duties established by acts of parliament. And prerogative powers cannot be used to pre-empt the decision of parliament on whether or not to continue with a statutory scheme.

These principles have certainly been upheld by the courts, which do not like to see ministers claiming prerogative powers to get round statutory restrictions. So the nub of this case is whether giving notice under article 50(2) undermines the 1972 act or pre-empts a decision of parliament.

Pannick says it does. Once the article 50 clock starts ticking, the UK has no power to stop it. In two years or so, people in the UK will no longer be protected by the EU charter of fundamental rights. Litigants will no longer have access to the EU court.

Notification under article 50(2) changes nothing, replies the government. The UK would still have to comply with EU law until withdrawal. Even then, equivalent rights could be granted by parliament.

What is more, says the government, joining and withdrawing from treaties are matters for the Crown, not the courts. If treaty-making is not justiciable, giving notice under article 50(2) cannot be challenged in the domestic courts.

But this is not just a treaty issue, replies Pannick. It has inevitable consequences in the domestic sphere. Far from trespassing on parliament’s territory by granting the declaration he is seeking, the courts would be preventing a minister from undermining what the legislature has decided.

On the last point, Pannick is clearly right. It is the judges’ job to ensure that ministers do not exceed their powers. On the main point, he is on shakier ground. Giving notice under article 50(2) will, almost inevitably, result in a loss of rights granted by parliament. But the direct cause of that loss will be the government’s promised repeal bill, not the notification itself.

The government’s strongest argument is political rather than legal. If the courts require legislation, the government would not be able to give effect to the referendum result unless MPs and peers agreed to respect it. At the very least, a bill might be amended or delayed in the Lords. Do the judges really want to thwart the will of the people?

By Joshua Rozenberg

(Courtsy of the Law Gazette Society)