There is a paradox at the centre of the great Brexit High Court case. The applicants demanding a parliamentary vote on leaving the EU assert the doctrine of parliamentary sovereignty – yet to gain their point they have to prove a piece of parliamentary legislation can be overthrown at the whim and say-so of the Prime Minister – by issuing her EU exit notification under Article 50 of the Lisbon Treaty.
But Brexit cannot occur in any effective form without Parliament’s clear and overt agreement – enshrined in legislation. A pro-EU Parliament is in a powerful position, but Theresa May and her Three Brexiteers are not rushing to inform MPs and Peers of the strength of their hand.
The point is that the European Communities Act 1972 is a piece of sovereign legislation – and it will remain intact after the Article 50 notification goes out – and even after Britain leaves the EU if Parliament decides to leave it there. If Parliament says so, it will remain good law, actionable in the British courts and indeed in the Court of Justice of the European Union.
Mrs May can issue her Article 50 notice under Royal prerogative, break with the EU if she wants, but the legislation stays in place – forever, if that is what Parliament wants. Furthermore it can continue to be effective law for as long as the EU continues to exist if that is the will of Parliament. Britain could be outside the EU – yet governed by its treaties, laws, Court of Justice decisions. It could all continue to apply and the UK courts will (or should) apply it insofar as it is practical to do so.
That is because, to hammer home the point, Parliament is sovereign – and the meaning of parliamentary sovereignty is that British courts will recognise the legislation that passes through Parliament and is signed into law by the Monarch (see Edinburgh and Dalkeith Railway Company v John Wauchope).
Now, Mrs May has offered a Great Repeal Bill so Parliament can sweep aside the ECA – but she hasn’t pointed out that Parliament need not sweep it aside at all if it doesn’t want to (otherwise why have a “repeal” Act?). If Parliament wants Britain to be governed by EU law it can be. Which puts Parliament in a powerful position to amend the ECA (via the Great “Repeal” Bill) to dictate the nature of Britain’s continuing relationship with the EU – soft Brexit, hard Brexit, European Economic Area membership or some other system. Or it can leave Britain in the, admittedly anomalous position, of being a sovereign nation governed in part by foreign law.
This is not the view of those asserting parliamentary sovereignty (ie the requirement for a vote on Article 50) yet who argue the ECA is a fragile thing that will be blown to the four winds by Mrs May’s signature on a Brexit notice. Lord Pannick QC, retained to represent Gina Miller in the High Court case, (R (Miller/Santos) v SS for Exiting the EU – first day transcript)) is building that case on the basis that the exit notice would prospectively repeal or render nul and void the European Communities Act. He was asked by Lord Justice Sales: “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?” Pannick said:
“Precisely … 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 [Article 50] 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 13 3(1).
Yes, that is indeed the Government’s intention – but is it Parliament’s? The two sections Pannick is talking about (see below) relate to “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties” and the remedies people have to access those rights “shall be recognised and available in law” in Britain; and EU rights and obligations will be interpreted in UK courts in line with EU Treaty obligations and Court of Justice determinations. He is asserting that these sections wither on the vine when Britain is no longer in the EU because the EU Treaties and the Court of Justice “fall away”.
But if the “rights” arise only under the treaty signed in 1972, then surely he has no case. The rights are not contained in the ECA so the Article 50 notice kills them dead – without wiping out any legislative rights. But if the rights are within the ECA (as the pro-Parliamentarians actually argue) then they will still exist. The Treaty of the European Union will continue to bind the remaining members and the Court of Justice will continue to sit in Luxembourg and its judgments will be recognised by other EU members. And the same can continue to apply in Britain so long as the European Communities Act remains on the statute books. Because Parliament (meaning parliamentary legislation) is sovereign and the ECA is not dependent on our membership of the EU. Hence the paradox.
The sovereignty point is important. It is axiomatic that Parliament can pass any legislation and have it recognised in the British courts. It used to be said it could pass a law to slaughter blue-eyed babies, but in reality Parliament has given up some of its sovereignty under the European Convention on Human Rights which prizes the right to life. It can still pass a law banning smoking in Paris if it wishes – Sir Ivor Jennings’s example to show the extent – and limits of sovereignty. Nobody in Paris would obey it and French courts would not uphold it.
But Parliament could, for example, say that the American Constitution from now on applies in Britain, along with all constitutional rulings of the US courts. It does not require us to be the 51st State – just to accept the discipline of US law. One could imagine an emerging democracy might do exactly that, adopting a ready-made system of rights and protections and jurisprudence.
That is no different from the European Communities Act whereby Parliament ousted some of its own sovereignty to allow EU law to operate in Britain. The ECA is not an accession Act. It does not say “Britain shall be a member of the European Union”. It says that EU law shall operate in Britain and be recognised in British courts.
The Government dilemma
The Government itself acknowledges EU law will continue to hold sway in Britain in certain areas thanks to specific UK legislation. The Government’s skeleton argument says:
“For example, the Financial Services and Markets Act 2000 could continue to provide for the grant of authorisation to firms based in the European Economic Area. The Communications Act 2003 could continue to require Ofcom to act in accordance with EU law, as per section 4. The Competition Act 1998 could continue to require courts to apply competition law consistently with EU competition law under section 60.” (Skeleton p.20)
In other words UK law will continue to take account and be bound by EU law in these matters – so by extension EU law could continue to be binding in all areas covered by the European Communities Act. The Government also acknowledges that removal of rights enjoyed under EU membership would have to be done by parliamentary statute: “on the principle of legality, which would apply to such legislation and require express wording in respect of any right that is currently enjoyed but will be modified following withdrawal of the UK from the EU”. (Skeleton p.21) (For the “legality principle” see “the Thoburn argument” note in this piece). That’s why Theresa May has said all the current rights will be transferred into British law under the Great Repeal Bill (where they can be more easily picked off later: see Bonfire of the EU rights).
The only point the Government is perhaps holding back is that the European Communities Act as a whole need not be repealed at all if a sovereign Parliament wishes to continue to see EU law in general remain binding in the UK. Continued access to EU rights and CJEU judgments is surely just as much a right protected under statute (the ECA if we accept the rights are contained there) as a set of EU rights frozen at the point of exit.
There might be limitations in the operation of the Act in this anomalous post-Brexit state. The Act allows for some EU law to become British law through secondary legislation, government orders with minimal parliamentary oversight. This or any other Government might not wish to continue to do this – but it could not undo those EU laws already extant without Parliament’s legislative say-so. A lot of new EU regulations would, nevertheless, be directly transferred into UK law with no chance for a Eurosceptic Government to prevent them, since that is how the system works thanks to the ECA.
Free movement might be problematic. That, in a sense, is a mutual bilateral right between Britain and the EU (or each of its members). So it would depend how far the EU wished to recognise Britain’s new anomalous position. But EU members could presumably continue to enter Britain under treaty rights enshrined in the wholly British, sovereign, European Communities Act. Mrs May’s nightmare, no doubt.
But these are minor issues in what could, if MPs were really serious about challenging May’s hard Brexit, be a brutal game of political poker in which Parliament would hold all the best cards. It seems unlikely that MPs, from a political point of view, would prevent Brexit – but it could hold Mrs May hostage and dictate its terms for the nature of Brexit. It could negotiate on the floor of the Commons, in effect, over heads of the Three Brexiteer ministers and their teams. And it could make clear that EU rights would not be lost and their abolition would not be put in the hands of the Government, as seems to be the plan (see Bonfire of EU rights again)
Thus the verdict of the referendum would be recognised by Mrs May issuing the Article 50 notification: Britain would be out. But the nature of the Brexit settlement would be wholly under the control of the sovereign pro-EU Parliament that Brexiters claim they were fighting for during the referendum campaign. If that isn’t delicious irony, nothing is.
This post has been somewhat controversial (see the responses section regarding one element, now amended). However the basic point, that exercise of the prerogative to issue an Article 50 notice and renegotiate new terms does not oust Parliament’s role in Brexit since Parliament is sovereign, was subject to discussion between judges and James Eadie QC, counsel for the Government, on the afternoon of the second day of the case (around page 148; see links below). Eadie concluded thus on page 150:
“13 Parliament is supreme, it can always say: you can enter into whatever agreement you want, I don’t like it; and you, the Crown will then have to go back and put up with being in breach of your international obligations or renegotiate the agreement.”
It is uncertain what happens if Parliament and Government don’t agree. Does Britain leave with no agreement? Or could the principle set out above be applied – Parliament unilaterally maintains the EU’s authority in areas covered by the treaties even though Britain would have no treaty with the EU – and thus forces the Government into soft Brexit?
Other useful pieces
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.
The Brexit Great Repeal Bill – a cunning ploy – this took the view that the GRB undermined the arguments of those demanding a legislative Parliamentary vote on Article 50 notice. That remains true but the current post moves the argument on, to suggest Parliament, not the Government, is in the driving seat.
Prof Adam Tompkins challenges the High Court judges’ ruling (since the above piece was written) here: Brexit, Democracy and the Rule of Law
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 …
The first day transcript 13 Oct of the Miller/Santos court case is here (MoJ pdf).
• The second day transcript: Full day transcript for 17 October 2016.
• Third day Full day transcript for 18 October 2016.
• All available at the Ministry of Justice
“Certain provisions of primary legislation may require amendment or repeal upon the exit of the UK from the EU, where they are based on the assumption that the UK is a member of the EU. But the existence of such rights is in no way inconsistent with the Government’s providing notification under Article 50(2). It is not contrary to Parliament’s providing for rights which assume but do not require the UK’s membership of the EU for that membership to cease. And … the act of notification would not itself cause such rights to cease to apply.”
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.”