On 13 and 17 October 2016, the High Court will be asked to determine whether a minister can “decide” to give the UK’s article 50 notice to quit the European Union without being authorised by an Act of Parliament.

There are a number of parties to the High Court action: the Claimants ((1) Gina Miller; and (2) Deir Tozettis Dos Santos); the Defendant (the Secretary of State for Exiting the European Union – David Davis MP); the Interested Parties ((1) AB, KK, PR and children; and (2) Grahame Pigney and others); and the Interveners (George Birnie and others).

The Court papers would normally be, or become, public. However, some of the parties and their legal representatives have suffered abuse from members of the public, so many of these papers have been kept confidential, to protect their identities. Until 27 September 2016, it appears that the papers were also being kept confidential because the Secretary of State objected to the publication of anything that made reference to his position on the legal issues. On 27 September 2016, the High Court made an Order, “For the avoidance of doubt“, that “the parties are not prohibited from publishing (1) the Defendant’s or their own Detailed Grounds [or] (2) their own skeleton arguments. If redactions are necessary to protect parties’ identities or addresses, these documents must be published in a redacted form“.

Since then, the solicitors acting for the second group of interested parties (Grahame Pigney and others) have published their skeleton argument; and the detailed grounds of resistance of the Secretary of State.  As a result, we can now see:

What the issues are:

The question … is whether a government minister can trigger the process of withdrawing the United Kingdom (UK) from European Union (EU) without being authorised to do so by an Act of Parliament. This calls for the Court to determine what the constitution of the UK requires before the UK may “decide” to leave the EU and then “notify” that decision … No party argues that the result of the referendum on 23 June 2016 was itself a “decision” … which would satisfy those “constitutional requirements” [or] that the judiciary can or should decide … The contested issue is whether constitutional authority to make that decision rests with … Parliament, or with government ministers in exercise of residual Crown prerogative powers … This litigation is not about: (a) whether or not the UK should decide to withdraw form the EU; or (b) how or when notification of any such decision should be given … This challenge is concerned with who makes the “decision” … not with who ultimately notifies that decision to the European Council … Nor is the Court being asked to interfere with Parliamentary procedure. The question for the Court is whether a Parliamentary decision, in the form of primary legislation, is constitutionally necessary before a minister can trigger the process of withdrawing the UK from the EU… 

The grounds on which the second group of interested parties (and, to some extent) the Claimants say Parliament must decide:

The Royal Prerogative is what’s left of the rights and privileges enjoyed by the Crown. It can be curtailed by Parliament. But it can’t be enlarged, or exercised in a field that Parliament has expressly or impliedly occupied by making legislation.  So, the “question is whether any purported exercise of prerogative power would frustrate the will of Parliament – that is to say its purpose as determined by the Court – in passing a particular piece of legislation …” Parliament occupied this particular field when it passed the European Communities Act 1972 (ECA), “to make provision in connection with the enlargement of the European Communities to include the United Kingdom…” Parliament legislated to enlarge the EU to include the UK; so it’s for Parliament to decide to legislate to contract the EU, by removing the UK from it.

Even if a prerogative power to decide that the UK should leave the EU still exists, it “does not extend to permitting the executive, without direct Parliamentary authorisation, to alter the law so as to deprive individuals of rights conferred by Parliament, the common law, or the customs of the realm. Such a deprivation of rights can only be achieved by an Act of Parliament“.  The prerogative cannot be used to modify or remove “the rights of UK citizens, in particular fundamental rights derived from citizenship, and directly enforceable private law rights derived from the European Treaties”  

Even if the prerogative power existed and extended to the removal of UK citizens’ rights, it would be an abuse of that power for ministers to decide that the UK will leave the EU, and to notify that decision,  without express Parliamentary authorisation to do so.  The prerogative is a discretionary power to be exercised for the public good. It should not be relied on to thwart the purpose and objectives of the constitutional framework created by Parliament when it enacted the ECA, and subsequent, relevant legislation.

Long story short: “only Parliament can lawfully “decide” to leave the EU“, and the Secretary of State “may only “notify” such a decision … once he has been properly authorised to do so by an Act of Parliament“.  

Why the Government thinks ministers can decide, instead: 

The Secretary of State disagrees:

  1. notification would be an administrative act on the international law plane about which complaint cannot be made by any individual … in the domestic courts“;
  2. It was clearly understood that the Government would give effect to the referendum result. It would be “constitutionally proper” to do that using prerogative powers;
  3. The decision to withdraw from the EU is not justiciable. Like the decision to join … it is a matter of the highest policy reserved to the Crown … [it’s] a polycentric decision … for which the expertise of Ministers and their officials are particular well suited and the Court ill-suited“;
  4. It is “constitutionally impermissible” for the Court to “compel” the Secretary of State to introduce legislation into Parliament. If it did, the “Court would be trespassing on proceedings in Parliament“;
  5. If the claim is justiciable and within the proper bounds of the Court’s role, the exercise of the prerogative power would be consistent with domestic constitutional law, in any event. “It is not precluded by or inconsistent with the ECA or any other statute. Nor would the commencement of the process of withdrawal from the EU itself change any common law or statute or any customs of the realm. Any such changes are a matter for future negotiations, Parliamentary scrutiny, and implementation by legislation“. 

Comments and next steps:

Whilst it’s at least possible that the High Court will make its decision on 17 October 2016, with so much at stake it seems more likely that the decision will be handed down days or weeks later. If the High Court finds against the Government, it seems almost certain that it will appeal, and that the appeal will “leap frog” the Court of Appeal, and be heard directly by a full panel of Supreme Court judges – perhaps by the end of the year. The same might also be true if the High Court finds against the Claimants, and they can afford to pursue an appeal.

It’s easy to imagine at least some of the government’s legal arguments failing in both the High Court and the Supreme Court. (Perhaps this is why the Secretary of State didn’t want us to see his legal arguments.) For example, it seems reasonably plain (a) that the question of whether ministers still have, and can lawfully exercise, a particular prerogative power is justiciable; and (b) that merely starting the process of withdrawal from the EU could easily lead to a change in UK law,  whether Parliament likes it or not. (If the article 50 notice is given, it probably can’t be cancelled or revoked without the agreement of some or all of the other EU Member States; and, in the absence of agreement about the terms on which the UK will withdraw from the EU, or an agreement to extend the 2-year period in which these terms must be negotiated and agreed, the UK will automatically fall out of the EU, and the UK’s laws will change – quite fundamentally – as a result. See our previous posts on this point, for example, here and here.)

The government’s legal arguments are also inconsistent with the views expressed by (for example) the report of The House of Lords Select Committee on the Constitution, which found, without expressing a view on the legal issues that will be decided by the Courts,  that “It would be constitutionally inappropriate … for the Executive to act on an advisory referendum without explicit parliamentary approval”; “The Government should not trigger Article 50 without consulting Parliament”; “Parliament should play a central role in the decision to trigger the Article 50 process”; and that only an Act of Parliament or a resolution of both Houses of Parliament would be “a constitutionally appropriate means” of achieving this outcome

Whatever the Court(s) decide will be critical from a political and UK constitutional law perspective. For example, the Government is likely to be concerned about whether it could get an Act passed by both Houses of Parliament notwithstanding the referendum result. (If MPs voted in accordance with the wishes of their constituents, rather than the wishes of those who voted in the referendum as a whole, those with a seat in Scotland, Northern Ireland, London and some of England’s other major cities, would almost certainly vote against an Act that gave ministers the power to decide to start the process of withdrawing the UK from the EU.) The Courts’ decisions will also likely to shape the UK’s constitutional and administrative law for a generation at least. More to follow…

Posted by Cooley