The High Court got it wrong on Article 50

The decision of the High Court in London this week was a ruling not on whether Brexit should happen, but on how it can happen lawfully. Some of the press coverage of the decision has been deplorable. There is nothing—nothing at all—in the court’s judgment to block the will of the people, to reverse the result of the referendum, or to get in the way of Brexit. Nor is there anything inappropriate in turning to the courts to determine how Brexit can proceed in accordance with the rule of law. To rule on such matters is emphatically the courts’ job. For 25 years I have been among the first to criticise judicial rulings that trespass into terrain better left to politicians and parliament. But this is no such case. The court has done nothing improper and those who sit idly by whilst others who should know better castigate the judges for doing their job should be ashamed of themselves. We are a country that abides by the rule of law, and we should act like it.

All of that said, as a lawyer I think the court’s ruling is wrong. What follows is a pretty technical legal analysis of why I think so. This is not a party political intervention, and nor is anything in this post informed by the fact that on 23^rd June I voted to “Remain” in the EU.

The issue to be resolved in the case is simple to state. It is whether government ministers have the legal power to trigger Article 50. This is not a question of European law. It is a question of UK-wide constitutional law.

If the answer to the question is yes, the power that ministers have to trigger Article 50 would be a prerogative power of the Crown—the prerogative power to make and unmake treaties. If the answer is no, then parliament would have to pass a statute to confer such a power on ministers.

More specifically, the question is whether ministers can trigger the beginning of the Brexit process without further parliamentary enactment. The question is not whether ministers could conclude that process without further parliamentary enactment, something nobody serious is suggesting they could do. In other words, the live question here is not “does parliament have to be involved,” because—at some stage—it certainly does. The question is a much narrower one: “does parliament have to be involved before the Brexit process may be formally commenced under Article 50?”.

Now, the first thing to say about ministers triggering Article 50 is that they are not doing it simply because leaving the EU is now government policy. They are doing it because this was the clear instruction of the British people in the referendum on 23^rd June.

The second thing to say about this is that the British people were able to give ministers this clear instruction because—and only because—parliament enacted a law that authorised the referendum to be held (the European Union Referendum Act 2015).

My first problem with the High Court’s judgment is that it ignores all these facts. Indeed, the fact that ministers wish to trigger Article 50 because and only because they have been instructed to do so by the British people is overlooked in the judgment. This is a stark omission. Ministers’ exercise of the prerogative to trigger Article 50 is no ordinary executive act: it is an act ministers have been told to undertake in a referendum authorised by Act of Parliament.

My second problem with the judgment is that it mischaracterises the European Communities Act 1972 (“ECA”). This is the Act that gives effect in the legal systems of the United Kingdom to the rights and obligations we have under the law of the EU. Only parliament could repeal this legislation. Triggering Article 50 would not repeal it. Ministers could not repeal it. The ECA is, without doubt, one of the most significant enactments ever passed by parliament.

The legal core of the court’s ruling is that the European Communities Act prevents ministers from triggering Article 50. This is the ruling I consider to be incorrect as a matter of strict legal analysis. The ruling is arrived at via three main steps, as follows: (1) under the ECA, UK citizens enjoy rights and obligations arising under EU law; (2) under our constitutional rules, ministers may not take away our statutory rights unless parliament has expressly authorised them to do so; (3) under the ECA there is no express provision made about withdrawal from the EU. There is therefore no express provision in the Act about ministers removing from our legal systems rights we enjoy under EU law. It follows, says the court, that the 1972 parliament must be taken to have intended that the ECA it passed in that year was meant to deny to future ministers the prerogative power to withdraw the UK from the EU.

Each step of this legal reasoning is flawed, in my view. First, the legal basis of the rights and obligations we enjoy under EU law is EU law, not the ECA. The ECA is merely the vehicle by which those rights and obligations are translated into enforceable rights and obligations in the legal systems of England and Wales, Scotland, and Northern Ireland. Those rights and obligations have force in the United Kingdom because and only because parliament has said so in the ECA (so much was confirmed in the European Union Act 2011, section 18). But this does not mean that the underlying source of those rights and obligations is the ECA itself—the underlying source is the EU.

Secondly, our constitutional rules about ministers not being able to dilute or diminish statutory rights without express authorisation have no application here. Triggering Article 50 will not dilute or diminish anyone’s statutory rights. It will commence the formal legal process by which the UK leaves the EU, no more and no less. What happens to the rights and obligations we possess in the UK by virtue of our EU membership will be a matter for parliament to determine in due course. And it is worth noting, of course, that May has said that she will invite parliament to legislate to maintain in force in the UK all the substantive rights and obligations we currently enjoy under EU law. It is government policy that workers’ rights will remain as now. Rights to equal pay likewise. Social protections will continue. And so on. But they will continue as UK rights and obligations, not as EU rights and obligations.

Our constitutional rules about ministers not being able to dilute or diminish rights without express statutory authorisation are relatively recent. The key sources of these rules are two House of Lords cases decided in 1998 and 2000 (Pierson and Simms). Herein lies the fatal flaw in the third step of the High Court’s reasoning: how can the 1972 parliament coherently be said to have intended an outcome that was not established in our constitutional law until nearly thirty years later? A ruling that relies on the proposition that the European Communities Act must be interpreted as if its authors intended their work to prevent ministers from exercising their prerogative powers over the making and unmaking of treaties is one that is inevitably anachronistic. It is therefore an irrational conclusion and, for that reason, there must surely be at least the prospect that the UK Supreme Court will in time overturn this week’s High Court ruling.

This is an edited version of a piece that initially ran on Tomkins' blog, "Notes from North Britain" 

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