No Brexit without parliament

Last month we summarised the arguments before the High Court in R (Miller) v Secretary of State for Exiting the European Union. Judgment was handed down on 3 November 2016: [2016] EWHC 2768 (Admin). It was a bombshell.

The parties having agreed that the matter was justiciable and the court recognising that the referendum result was a matter of significance to be considered ‘elsewhere’, the sole question was whether the government was entitled to use the royal prerogative to give notice under article 50 for the UK to cease to be a member of the EU. The court was at pains to emphasise, as it had during argument, that the only issue was this question of pure constitutional law. The merits (or otherwise) of Brexit were not a matter for the courts, whose constitutional duty is to enforce rules of law.

The court held that ‘the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to article 50 of the [Treaty on European Union] for the United Kingdom to withdraw from the European Union’.

Citizens’ rights

The court’s reasoning is instructive. Parliament is supreme. An important aspect of its supremacy, as recognised in the Bill of Rights (1689), is that the royal prerogative only extends so far as permitted by the common law. The government ordinarily has the conduct of making treaties on behalf of the UK, but this does not extend to circumstances in which citizens’ rights would be affected.

The European Communities Act 1972, a ‘constitutional statute’ by which the UK acceded to the European Communities (the predecessors of the EU), gives ‘directly effective EU law superiority even over domestic primary legislation’ and cannot be impliedly amended or repealed. It was common ground that once the process initiated by triggering article 50 was complete, there would no longer be enforceable EU rights in the UK.

There are three categories of EU law rights. The first contains rights (such as those under the Working Time Directive (2003/88/EC)) that are capable of replication in domestic law in the event of Brexit. It is, however, no answer to the article 50 challenge to say that these rights could be reproduced. The second includes rights enjoyed by UK citizens in other EU member states under EU law. The third contains those rights (such as the right to seek a reference to the Court of Justice of the European Union) which, arising as they do from membership of the EU, could not be replicated in domestic legislation.

The claimants argued that the royal prerogative cannot be used to diminish or abrogate citizens’ rights unless by parliamentary authority. In the absence of any such authority (whether in the European Union Referendum Act 2015 or otherwise), the government’s triggering of article 50 would pre-empt any ability of parliament to decide whether to affect statutory rights. This was impermissible.

Prerogative power

The government argued that the royal prerogative could only be limited with express statutory words, that such words had not been included in any statute, and that the European Communities (Amendment) Act 2008 and the European Union Act 2011 impliedly recognised that the prerogative power to trigger article 50 existed. The necessary implication from the silence in the 2015 Act was that the government’s prerogative power remains. The court disagreed, holding that, if this were right, parliament would have provided that EU law rights, which are fundamental, should be vulnerable to removal by the government.

Indeed, in relation to constitutional statutes (and particularly in relation to the 1972 Act, which was one of ‘special constitutional significance’) there is a strong presumption that parliament intended to legislate in conformity with constitutional principles which the government could not overcome by suggesting that this was implicit. The government cannot effectively repeal the 1972 Act by exercise of the royal prerogative.

The court held that parliament clearly intended, by the 1972 Act, to introduce EU law rights into domestic law ‘in such a way that this could not be undone by exercise of Crown prerogative power’. The royal prerogative operates only on the international plane, and the government cannot use its prerogative powers to alter domestic law.

The claimants were granted a declaration that the government cannot trigger article 50 without parliament’s consent. The government was granted a certificate of general public importance so that any appeal can go straight to the Supreme Court if permission is granted. In its various statements since judgment was handed down, it appears that the government intends to appeal.

Toby Vanhegan and Riccardo Calzavara are barristers at Arden Chambers. They provide legal advice and assistance on issues of English law in Italian, Spanish and Portuguese to clients from around the world via their website www.lawinyourlanguage.com