Note: The High Court has been unpersuaded by the sort of arguments set out below and has now ruled that the Government does not have power to issue its Article 50 notification. The post nevertheless remains relevant regarding the background and possible political implications of the judgment. The 3 November 2016 judgment is available here.
British Prime Minister Theresa May’s announcement of a Great Repeal Bill to set the seal on Britain’s march out of Europe has not received much good press (or good blog, if that’s a thing) among the legal pundits. “No news here”, “inevitable, really”, “bound to have happened at some point” – this has been the general tenor of informed opinion on the matter.
Yet for some reason informed opinion has failed to recognise it as a remarkably clever wheeze that manages to shoot a number of Opposition and Anti-Brexit foxes with one twitch on the trigger. It has undermined the legal case for giving Parliament a direct say on whether Britain leaves the EU and helped shift the political debate to whether Parliament should merely have “oversight” of the process or a say in the final form Brexit would take.
So Ed Miliband’s comments this week included this: “It would be a complete outrage if May were to determine the terms of Brexit without a mandate from parliament. There is no mandate for hard Brexit, and I don’t believe there is a majority in parliament for [it] either.” This is far from a demand for an In/Out vote for parliamentarians before Article 50 notification of EU exit is issued under Royal prerogative in March.
Brexit Secretary David Davies was at pains in his statement this week (October 10) to point out that a vote on the Great Repeal Bill will involve plenty of debate on the issue – but not offer MPs to vote against Brexit: “This Bill is separate issue to when Article 50 [notice of EU exit] is triggered … it [the Bill] won’t take us out of the EU.”
The legal fox: severely wounded
The Great Repeal Bill strengthens the UK Government’s position in various of the cases in various of the courtrooms around the country that seek to challenge Mrs May’s use of the Royal Prerogative to issue the Article 50 notification. The prerogative powers are the residual powers of the Crown (ie the monarch) that the Government exercises without the say-so of Parliament by the Government. They include treaty-making, and Britain entered the EU with the 1972 Treaty of Accession – not through a parliamentary vote. The Government says the prerogative powers can be used also to end the treaty and pull out of the EU.
The pro-Parliament argument against such use of the prerogative can be summarised thus, and was so in a University College London debate by Jeff King, co author of what has become the leading blogpost (if that’s a thing) on the Article 50 debate:
“Any purported exercise of prerogative power that results in a necessary amendment, repeal or [rendering a] dead letter of an Act of Parliament is unlawful” (at about 26 minutes)
Acts of Parliament, as it were, trump prerogative. That’s why Britain had all those civil wars, beheadings and the Glorious Revolution in the 17th century (and one or two crucial judicial statements in more modern times – see note on the Fire Brigades Union below).
So the pro-Parliament argument of those such as Mr King (and others, many of whom are anti-Brexit) is that the European Communities Act 1972, being an Act of Parliament and setting out the legal path Britain was to follow post-accession, ousted any prerogative power to withdraw from the EU. The ECA cannot and must not be “impliedly” repealed by an Article 50 notice – only Parliament can do that.
The problem with the argument is that Article 50 notice would not repeal the ECA impliedly or otherwise (as noted at length here: No backdoor Brexit exit). It would stay in place, and have to stay in place, until at least Britain’s final exit and possibly longer in an amended state if Britain, for example, stayed in the European Economic Area. Hence Mr King’s “necessary amendment, repeal or dead letter” formulation. He is saying that Article 50 notice would certainly but contingently modify, repeal or render nugatory the ECA some time in the future – depending on how things went. He takes the view that a necessary contingent implied repeal is sufficient to render an Article 50 notice issued under royal prerogative unlawful.
But now that we know from Mrs May that the Article 50 notice will not render the ECA a dead letter (if it ever could have done), can it matter that the statute must (“necessarily”) be amended/repealed – as long as it is amended/repealed by a new Act of Parliament? Remember, the ECA is not a piece of legislation by which Britain acceded to the EU – that was done by the 1972 treaty shortly beforehand. What the ECA does is oust Parliament’s supremacy in regard to EU law; EU law thus became British law according to EU constitutional requirements, not British ones. That’s why it must stay in place while Britain continues as a member of the EU.
What will the judges say?
The judges faced with the “repeal, amend, dead letter” argument will presumably see it as a proxy for the notion that “Parliament must have a vote on Brexit” – and reject that notion. They may, nevertheless, feel that the Great Repeal Bill horse should come before the Article 50 cart and so uphold the pro-Parliament claim to that extent. As it stands we have Mrs May’s promise of a Great Repeal Bill, but she seems to want it after issuing the Article 50 notice. (Davies was a little vague on the timing but said that the Bill would be presented “in the next parliamentary session” and would be debated in parallel with the European negotiations – over the succeeding two years.) That way (and this is how she would shoot the Opposition and anti-Brexit foxes) all parliamentarians would be pretty well obliged to vote for it. After all, it guarantees continuance of all EU rights (which is the minimum that pro-EU people want) but leaves to the future their individual repeal (which Brexiters will demand – though see Bonfire of EU rights to see the problems of this).
This worry about a loss of rights prompted Lord Falconer, no Brexiteer, to plead only a fortnight before her Repeal Bill announcement (BBC Radio 4’s Unreliable Evidence 14 Sept 2016) for a piece of holding legislation so “not a single EU right” was lost. (He certainly did not seem to see that such an Act would be inevitable.) Well, now his lordship will get his legislation and, such being the nature of the British constitution, he will also have the benefit of being able to vote on it in the House of Lords.
The important point, though, is that a parliamentary vote on the ECA would not, under these circumstances, be a vote for or against Brexit. That die will have been cast by the Article 50 notice – since we must assume the Bill becomes an Act well after Article 50 is triggered.
So it seems unlikely that the judges will be able to use concern over the “repeal, amend, dead letter” formula to craft an argument for a straightforward parliamentary vote, yea or nay, on Brexit. But they might take the view that the EU referendum was not quite enough to allow a prerogative act to sweep away British membership of the EU with the flourish of one woman’s signature (see The Thoburn point below).
Perhaps there would be a legal logic in saying that the Great Repeal Bill should be passed before the Article 50 notice goes out. This would make the Bill quite a different beast – and a very confusing and complicated one at that. Post-Article 50 notice, everyone would be obliged to vote for it – but pre-Article 50? Anti-Brexit MPs and Peers would have some incentive to vote it down – using it as a proxy for a an In/Out vote. But, of course, it would not actually stop Brexit with any finality because the ECA was not an accession Act. It would simply throw the whole thing back into the melting pot.
(In the event the judges sitting in the High Court did take account of the cart/horse point, saying this:
“[I]t is no answer to their case [ie that of Miller et al] to say that some of them [EU rights] might be preserved under new primary legislation, yet to be enacted [the “Repeal Bill”], when withdrawal pursuant to Article 50 takes place. The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 of effect. We also consider that the removal of the ability to seek authoritative rulings of the CJEU regarding the scope and interpretation of such rights would itself amount to a material change in the domestic law of the United Kingdom.”)
An early general election?
In the old days, if the Government could not get a crucial piece of legislation like this through Parliament, it could treat it as a matter of confidence and ultimately the Prime Minister (using the monarch’s prerogative powers) could have Parliament dissolved and go to the country. Now, though, we have the Fixed Term Parliaments Act. It is up to Parliament whether it wishes for a vote of no confidence – which would, if passed, initially give the opportunity for a new Government to be formed within 14 days from the extant Parliament (FTPA S.2(3)). Dangerously, for Mrs May, that might (but only might) be a pro-EU Government prepared to scupper the whole EU business.
The alternative is a dissolution vote requiring a two-thirds majority of the whole House of Commons (FTPA S.2(1) and (2). Labour, foolishly given its fractious state, already seems willing to back such a vote, and so we would have a Brexit election.
Mrs May might actually relish this, eyeing the 52 per cent of voters who backed Brexit and campaigning as the leader of the only party that can make it happen. She would win, and such a clear mandate via the orthodox constitutional means of a parliamentary democracy would be wholly unassailable by interfering unaccountable judges (and much would be made during the election campaign, no doubt, about interfering unaccountable judges).
So one way or another, there seems no escape for the anti-Brexiters. They might be advised to slink into the brake and down into their dens and hope to avoid Mrs May – a deadeye with the old Purdey.
No backdoor Brexit exit) – a guide to the arguments on whether Parliament has a say on Brexit
Bonfire of EU rights – on disturbing proposal to give Government ministers the right to repeal EU laws.
Spinning Hugo considers the High Court judgment here: How the Government Lost – and insists that, if correctly argued, the Government should win an appeal.
The Miller/Santos case
The following exchanges in the first day of this case (Oct 13) included this between Lord Justice Sales and Lord Pannick QC (for Miller) at page 54/55 of the draft transcript:
SALES LJ: Am I right in thinking that you say that the effect of the argument for the government would be that there wouldn’t need to be a repeal of the 1972 Act or section 2 of it, it is just that the content of the obligation in section 2, EU rights, would fall away, because they would cease to be EU rights?
16 LORD PANNICK: Precisely. Your Lordship is very aware and I am not going to enter into any political debate, but your Lordship knows that the government have announced that there is going to be a great repeal bill which is to be produced some time in the next session. I say that the consequence of the defendant giving notification will be that at a point in the future, it is inevitably the case that the United Kingdom leaves the EU and the consequence of that, as a matter of law, is that all of the rights enjoyed under section 2(1) and
section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say nothing about that. It will not affect those questions. Those rights will fall away as a consequence of the United Kingdom leaving the EU. Because when we leave, there are no treaty obligations. That is the whole point of leaving. And indeed that is the government’s intention. This is not a happenstance, this is the whole point of notification. Notification is intended to remove the current substance of section 2(1) and 3(1).
Note: The European Community Act at 2(1) says:
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable EU right’ and similar expressions shall be read as referring to one to which this subsection applies.”
At 3(1) it says: “For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court.”
So Pannick is arguing that when Britain withdraws from the Treaty, there will be no reference point for Ss.2(1) and 3(1) of the ECA – since the Article 50 notification will be notice that Britain will no longer (at some point in the future) be bound by the treaties mentioned in those sections.
This suggests he holds to the “dead letter” view on these Sections – that they become (prospectively) nul and void on issuing Article 50 notice. But arguably they don’t – until Parliament repeals them. It is conceivable that a state (call it the UK) might wish to be bound by EU law including judgments of the Court of Justice while not being a member of the EU. The Scottish Nationalists have suggested (by implication) something of the sort for Scotland. So it might still require Parliament to repeal these sections even after the Article 50 Notification – if that’s what Parliament wishes to do. It would be odd not to and certainly politically unacceptable – but not constitutionally impossible. (This writer did try such an argument in a separate piece but it did not find favour with various more knowledgeable academics; see the comment added to Parliament holds the cards)
For Deir dos Santos, Dominic Chambers QC said this (at page 167 in the transcript):
[U]nder this proposed bill, on the UK’s withdrawal from the EU, the 1972 Act will be repealed and the current EU law will be transposed wholesale into domestic law, to be chewed over at leisure by Parliament in the months and years ahead. That is the proposal. But in our submission, that is topsy turvy. What it amounts to is the executive setting itself up as a de facto legislature at the Article 50.2 notification stage. The executive will be saying to Parliament at the notification stage ‘We have, without consulting you, set in train an unstoppable process of withdrawal from the EU and it is up to you, Parliament, to sort out the consequences in two years’ time, when the withdrawal takes effect’. That, in our submission, is what in reality is happening here and we say that is not permitted under the doctrine of parliamentary sovereignty, because it presents Parliament with a fait accompli. And it deprives Parliament of the choice of whether or not its enacted legislation should be repealed because in those circumstances, Parliament will have no choice either to repeal its enacted legislation or it will simply just fall by the wayside. Either way, the rights will have been lost. Now, we submit that Parliament cannot lawfully be
forced into this position by the executive because it is directly contrary to the negative side of parliamentary sovereignty, as described by Dicey. By acting as it is proposing to do, the executive will be doing nothing less than suborning the will of Parliament, as manifested in the 1972 Act and other enactments which give effect in domestic law to EU law rights.
This is a more strongly argued version of the “repeal, amend, dead letter” argument – that Parliament will be forced to act by the fait accompli that Britain will already be out of the EU. But if one accepts that the ECA could continue in force after Brexit (as suggested above in the note on Pannick’s similar point), then the “suborning” of Parliament would be just that ie inducing Parliament to repeal the Act and replace it with sovereign rights derived from a snapshot of the EU law landscape – but inducing it by political means. No one can say Governments have never suborned Parliament to get Statutes through – and courts will of course recognise those Statutes however much suborning goes on – see Edinburgh and Dalkeith Railway Company v John Wauchope. (Thanks to bailli.org for this ancient and important case.) But Parliament could, if it wished, reaffirm the ECA – make it applicable even though Britain was out of the EU – and ultra-soft Brexit in which the UK would accept EU law albeit that the EU would not necessarily accept any bilateral obligations to Britain. It could operate as a political threat rather than a realistic outcome. See Parliament holds the cards.
The first day transcript of the Miller/Santos court case is here (MoJ pdf).
• The second day morning transcript: Full day transcript for 17 October 2016.
• Third day: Full day transcript for 18 October 2016
• All available at the Ministry of Justice
Obiter J has gathered the skeleton argument for the court challenge from two of the parties (Miller and Dos Santos v Secretary of State) plus the Government’s grounds of resistance here (plus other Brexit info)
Obiter J also gathers some of the comment on the Great Repeal Bill here.
• This is the Government’s full skeleton argument pdf in Miller and Dos Santos v Secretary of State.
• The People’s Challenge skeleton argument is here.
• The Mishcon de Reya skeleton is here: mishcon.com/assets/managed/docs/downloads/doc_3072/Skeleton_for_the_Lead_Claimant.pdf …
• An intervener, People’s Challenge, in the case has clarified their position, viz rejects the notion that the Brexit litigators agree “a (constitutionally) valid decision that UK should withdraw from EU has already been taken”: 2016/10/Clarificatory Note.pdf …
• Case of Proclamation 1610: The Crown has no prerogative to change the common law or statute, or to create new offences: “The King by his proclamation cannot change the common law or statute law or the customs of the realm”.
• An EU briefing on Article 50 is here.
• A parliamentary note on the Ponsonby Rule is here. This is an understanding that Parliament will be consulted on treaty changes (ie laid before Parliament for 21 sitting days).
• This Lords Constitution Committee report (2013) on the Government’s powers (and how far it can pre-empt parliamentary legislation) is of interest.
• Prof Mark Elliott critiques the government’s arguments here (though he has favoured their position on whether Parliament must have a say in taking Britain out of the EU: Public Law for Everyone, here).
He looks at the Great Repeal Bill announcement here.
• Kenneth Armstrong at the LSE looks at the Great Repeal Bill here.
• Carl Gardner gives his view of the Article 50 case at headoflegal.com. He sides with the Government view.
• Lord Norton looks at the Fixed Term Parliaments Act (and the mistaken view that Theresa May can just call an election at will) on his blog here.
The Thoburn argument
This and the related the “legality principle”, according to John Adenitire on the UK Constitutional Law Association blog, is: “the well-established constitutional principle that only Parliament may abrogate fundamental rights”. (See R v Home Secretary ex parte Simms  2 AC 115, 131. Similarly Lord Justice Laws in the “metric martyrs” case Thoburn v Sunderland City Council etc, said (albeit obiter dicta – in passing) some statutes should be recognised as “constitutional” and could not be repealed except by clear words in a new parliamentary Act – ie not by implication:
“We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).”
This is used to argue for a straightforward vote in Parliament on Brexit since EU membership comes with many rights which should not be lost through a prerogative act and the ECA is clearly a “constitutional” Act that should not be impliedly repealed.
“Just as it is inaccurate, or incomplete, to say that the UK joined the EU by means of enacting the ECA 1972, that Act’s repeal is not a necessary component of Brexit” (argued by Mark Elliott, Public Law for Everyone, here). The anti-Brexiters are arguing that the passing of the European Communities Act 1972 did thus abrogate any prerogative power to exit the EU. The prerogative should not be used “so as to frustrate the will of Parliament” (see: R v Home Secretary ex parte Fire Brigades Union)  2 AC 513 in 1995, where Lord Browne-Wilkinson stated that: “…it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament as expressed in a statute and, to an extent, to pre-empt the decision of Parliament whether or not to continue with the statutory scheme…”
The long title of the ECA
Something is made by the proponents of a parliamentary vote on Brexit of the European Communities Act “long title” which states it is an Act “to make provision for the enlargement of the European Communities to include the United Kingdom”.
The long title is not part of the legislation, as such, but “is a permissible aid to interpreting the terms, and object and purpose of the Act,” Jeff King et al tell us. So how should we interpret the words “make provision for”. That would seem to say no more than it lays the necessary groundwork for “the enlargement” not that it creates the enlargement itself or any rights per se (except perhaps the right to have UK courts judge EU cases and judge them on EU principles).
King et al say the “whole object and purpose of the 1972 Act … is to make the UK part of the EU”. But it isn’t, since the UK became part of the EU via the treaty and it is within the treaty that EU rights lie, not in the ECA. The ECA did not take Britain into the EU but it allows Britain to exist more comfortably within it from a legal point of view – ensuring, in particular, no awkward clashes between UK laws and EU laws.