Finger on the trigger

Seventeen weeks have passed since the fate of the UK in Europe was decided. The promises of the Leave campaign have melted away, Brexit appears to mean ‘hard Brexit’, and Labour has forced a parliamentary debate and appointed a prominent Remainer as shadow Brexit secretary.The way forward is unclear, but this may soon change. The case of R (Miller) v Secretary of State for Exiting the European Union has just been heard by the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sales. The High Court was asked to declare that any article 50 notification without parliament’s prior authorisation would be unlawful.

Parliamentary sovereignty

Lord Pannick QC’s submissions for the lead claimant were simple. The court was invited to ignore the political wisdom (or otherwise) of Brexit and to focus only on its trigger. By the European Communities Act 1972, parliament afforded rights (free movement, European citizenship, access to the Court of Justice of the European Union) which only it, and not the government by exercise of the royal prerogative, may take away. Parliament is sovereign; the government is not empowered to override it.

Even parliament may not take away common law rights without clear statutory wording. The bar for statutory rights is necessarily higher. The European Union Referendum Act 2015 did not prescribe the consequences following from its advisory plebiscite; that the majority voted Leave may sway parliament, but is not the court’s concern. Triggering article 50 by exercise of the royal prerogative would be unlawful. Tabling a Great Repeal Bill after the event is insufficient because parliament’s hands would then be tied: once the trigger has been pulled, there is no wall capable of blocking the bullet. It was also argued that only parliament could revoke the rights set out in the Bill of Rights 1689. Parliament did not surrender its sovereignty by offering a referendum, nor did it override the UK’s representative system of democracy. EU citizenship rights have a fundamental constitutional character and cannot be impliedly repealed.

The government also rolled out the big guns. The attorney general submitted that holding the referendum was a key Conservative manifesto pledge whose result, it had been repeatedly stated, would be treated as final. If parliament must vote on the question, the answer given by the clear majority would be invalidated (not to say possibly overridden). In any event, parliament – whose sovereignty can be expressed equally by acting and neglecting to act – expected article 50 to be triggered by the government.

The government reminded the court that any declaration will have profound political and constitutional implications. It is outwith the courts’ competence to instruct parliament. The government cannot legislate to remove rights, but triggering article 50 is not legislating: the removal of rights will come – by primary legislation – long after the shot is fired. In the international sphere, negotiation and conclusion (and withdrawal) are traditionally the government’s domain. This is no different. Parliament has nowhere abrogated the royal prerogative and has left the power to Brexit with the government.

It was also submitted that the rights conferred by parliament in, inter alia, the 1972 Act could be re-legislated for after Brexit; the ‘constitutional’ rights, such as free movement, were negotiated for and obtained by the government, not parliament; and the ‘rights’ contained in the Treaties, such as access to the European Commission, are not personal rights but rather duties bestowed on relevant bodies.

Royal prerogative

The claimants’ argument is compelling. The royal prerogative is a vestige of the ancient absolute powers of the monarch, now exercised by ministers. Using it to effectively repeal an act of parliament amounts, in historic terms, to the Queen overriding the people. Ensuring that would no longer happen was central to the Bill of Rights.

The secretary of state’s simple response is that the royal prerogative knows no such limitation: the people’s will (which parliament represents) can be no more clearly expressed than in a plebiscite.

In any event, the triggering of article 50 will not remove any rights; that will be legislated for later.The reserved decision is expected soon. Whatever happens, there is likely to be an appeal straight to the Supreme Court and there are suggestions that two days in December have already been set aside to deal with it.

Riccardo Calzavara, pictured, and Toby Vanhegan are barristers at Arden Chambers

@ArdenChambers www.ardenchambers.com