Brexit challenge in the Supreme Court

The Supreme Court, sitting for the first time as an eleven-member panel, last week considered the appeal from R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) together with a reference from the Court of Appeal (Northern Ireland) in Re McCord’s Application [2016] NIQB 85. The justices also heard submissions regarding the position in Wales and Scotland.Although expressed differently by the various parties, the issue was whether the government has power pursuant to article 50 to give notice of the UK’s intention to withdraw from the EU without prior authorisation by an act of parliament.

The president of the Supreme Court, Lord Neuberger, commenced the appeal by making it clear that the court was not interested in the political context. Its constitutional duty was to decide the legal questions.

The secretary of state (supported by Lawyers for Britain Ltd) made three submissions in support of his contention that he has power to trigger article 50. First, the prerogative operates in accordance with parliamentary sovereignty. Parliament may seek, but has not sought, to preclude the government from exercising article 50. Parliament expected the government to act without further explicit authorisation.

Second, the royal prerogative is not a mere ancient relic, but a contemporary necessity through which the government makes and unmakes international treaties. Were the powers to be subject to parliamentary authority, they would cease to be ‘prerogative’ powers.

Third, the prerogative operates as part of a dualist system: rights are negotiated and created by the government but enacted by parliament. Although entry into the EU was a joint effort of parliament and the government, Brexit can be by the government alone because parliament has ceded control. It would be a bizarre result if parliament simultaneously gave the populace the choice and reserved to itself the right to make the ultimate decision.

Ms Miller and Mr Dos Santos (supported by the AB interested parties, the ‘expat interveners’, and the Pigney respondents) submitted that only parliament can trigger article 50 for two reasons. First, only it can defeat rights it has bestowed upon citizens (such as the rights to make a reference to the Court of Justice of the European Union and to move freely within the EU): a parliamentary sovereignty argument. Parliament having the power to decide whether to trigger article 50 is not to render ineffective the referendum, which was, in any event, merely advisory.

Second, absent clear statutory authority, the secretary of state has no power to defeat constitutional rights (such as membership of the EU): the royal prerogative argument. Parliament did not legislate to make the outcome of the referendum legally binding. It is for parliament to consider the outcome of the referendum and decide how to act.

The court also heard references arising from the decision in Re McCord’s Application. Mr McCord submitted that the Good Friday Agreement 1998/99 sets out the constitutional basis on which the people of Northern Ireland submit to be governed by parliament. That includes a requirement that the Republic of Ireland and the UK remain members of the EU. There can be no Brexit without the consent of the Northern Ireland Assembly.

Mr Agnew MLA submitted that the effect of the Northern Ireland Act 1998 is that an act of parliament is required before article 50 can be triggered and that, before any such act can be enacted, a legislative consent motion should be sought from the Northern Ireland Assembly.

The attorney general for Northern Ireland disagreed and supported the secretary of state.

The lord advocate (supported by the Independent Workers’ Union of Great Britain) submitted that triggering article 50 requires an act of parliament. First, he submitted that Brexit will affect the legislative competence of the Scottish parliament and government, which, by the Scotland Act 1998, is prohibited without an order in council approved by the Scottish parliament and both houses of parliament.

Second, he submitted that the royal prerogative could not, in any event, be employed because the exercise of article 50 will disapply laws which currently apply in Scotland, being those with direct effect and those that exist because of the UK’s membership of the EU.

The counsel general for Wales gave similar reasons, in the context of the competence of the National Assembly for Wales as governed by the Government of Wales Act 2006, for the government’s inability to trigger article 50. In addition, he submitted that any such modification to the legislative competence of that assembly engages the Sewel Convention, so that the assembly’s consent is required.

The advocate general for Scotland, dealing with submissions relating to the devolved jurisdictions of Wales and Scotland, disagreed and supported the secretary of state.

Judgment is expected in the new year.