The High Court and Article 50 - Extracting what the Judgment said

More popular media heat than light has been generated by the High Court's decision on 3rd November. This article attempts to report objectively and in plain terms what the Court said by way of key points. It does not take sides in the Brexit debate, nor comment on any political issues arising from the judgment. 

Background

The case was heard in the High Court of Justice, Queen's Bench Division, Divisional Court, on 13th, 17th and 18th October.

The three judges were the Lord Chief Justice, Lord Thomas, The Master of the Rolls, Sir Terence Etherington, and Lord Justice Sales.

The Claimants were Gina Miller and Deir Tozetti Dos Santos. There were other parties, technically described as Interested Parties and Interveners.

The Defendant was The Secretary of State for Exiting the European Union.

The Judgment

The judgment comprises around 30 pages of text (depending on how the document prints) and 111 numbered paragraphs. Where relevant I will quote the paragraph number. I will put any words directly from the judgment in speech marks. If I add any comments that go beyond reporting what the Court said, these will be in square brackets.

Para 4: The sole question is whether the United Kingdom government is entitled to use its prerogative powers to give notice under Article 50 for the UK to cease to be a member of the European Union.

Para 5: "Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union."

Para 7: It is not difficult to identify people entitled to bring a challenge, since virtually everyone in the UK. or with British citizenship will have their legal rights affected if notice is given under Article 50.

Para 9: Article 50 states that any Member State may decide to withdraw from the Union "in accordance with its own constitutional requirements". Para 2 of Article 50 puts responsibility on to the Union to negotiate an agreement with the State on the arrangements for the State's withdrawal. Under Para 3, the formal exit for the State is when the withdrawal agreement comes into force or, failing that, two years after the Article 50 notification. The European Council has power to decide to extend the two-year period. Its decision must be reached unanimously.'

Para 10: An Article 50 notification cannot be withdrawn. It also cannot be given conditionally.

Para 12: A withdrawal agreement "may preserve some parts of the relevant Treaties or may make completely new provision for various matters". [Thus something short of a hard Brexit is legally possible, but that is separate from political considerations].

Para 13: "The Secretary of State was at pains to emphasise that, if a withdrawal agreement is made, it is very likely to be a treaty requiring ratification and as such would have to be submitted for review by Parliament." This would happen under the negative resolution procedure set out in Section 20 of the Constitutional Reform and Governance Act 2010 ("CRAG 2010"). [A negative resolution procedure is one where a statutory instrument becomes law without debate unless there is an objection from either the House of Commons or the House of Lords. A statutory instrument is one that allows secondary legislation to be brought in or amended under an existing Act of Parliament without a further Act of Parliament. The application of this procedure in relation to Article 50 is not discussed further in the judgment, but there does not seem to have been much if any discussion of the point, from a political aspect, so far in the press. However, as will be seen further down, the raising of this point by The Secretary of State did not affect the Court's judgment.]

Para 14: If a withdrawal agreement is not ratified, then the two-year period will continue to run, and so in any event the EU treaties would cease to apply to the UK at the end of the period (or any extension decided by the Council - see above). "Parliament's consideration of any withdrawal agreement under the procedure in CRAG 2010 would thus be constrained by the knowledge that if it did not approve ratification of it, however inadequate it might believe the withdrawal agreement to be, the alternative would likely eventually be the complete removal of all rights for the United Kingdom and British citizens under the EU Treaties when the relevant Article 50 time period expires."

Para 18: "The United Kingdom is a constitutional democracy framed by legal rules and subject to the rule of law. The courts have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws."

Para 19: The Court only has jurisdiction to apply the laws of England and Wales, but no one in the proceedings has argued that relevant Scottish or Northern Irish law on the interaction of statute and the government's  prerogative powers, is any different from the law of England and Wales. [See below on the role of the Supreme Court in hearing the appeal from this judgment.]

Para 20: "Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow this to happen. The ECA [European Communities Act] 1972, which confers precedence on EU law. is the sole example of this."

Para 21: But nevertheless, Parliament remains sovereign, and "has power to repeal the ECA 1972 if it wishes."

Para 22: Parliament has the sovereign right to make or unmake any law. This "has the corollary that it cannot be said that a law is invalid as being opposed to the opinion of the electorate."

Para 25: "An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers."

Para 26: "The subordination of the Crown (ie the executive government) to law is the foundation of the rule of law in the United Kingdom."

Para 29: Various branches of government have power to make rules having the force of statutes, but all such rules derive their validity from the statute that creates the power and not from the executive body by which they are made. [These words are taken from a 1916 Privy Council case quoted in the judgment. Other court authorities quoted go back as far as 1610.]

Para 30: As a general rule, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers. [References to Crown and government in the context of the judgment, can be taken as interchangeable.]

Para 31: The Secretary of State contends that nothing has been done in the ECA 1972, or any other statute, to remove the power of government, in conducting international relations, to remove the UK from the EU by giving notice under Article 50. He contends further that government's prerogative power to trigger Article 50 could only be removed by express primary legislation or by legislation that implies this removal of right.

Para 32: "By making and unmaking treaties the Crown creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law."

Para 33: The Royal Prerogative "does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament."

Para 36: The Secretary of State argues that Parliament must have intended that the government would have power to give notice under Article 50 in the exercise of its prerogative right to conduct international relations.

After discussion of various points, the judgment moves at Para 77 onwards to what it describes as "The nub of the contention of the Secretary of State".

Para 77: The Secretary of State maintains that "under Section 2(1) of the ECA 1972 the content of EU rights is defined by reference to the EU Treaties". The argument is that it is continued membership of the EU under these Treaties that gives citizens their EU rights, and so whether that membership continues was intended by Parliament to depend upon the action of government "on the plane of international law" [see Para 30].

Para 81: [The Court rejects the contention of the Secretary of State under Para 77, and goes on to explain its reasoning].

Para 82: Statutory interpretation, particularly of a constitutional statute which the ECA is, must be done according to background constitutional principles which inform the inferences to be drawn on what Parliament intended. "Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them and not to undermine them."

Para 83: As one example of this approach to statutory interpretation, there is "a strong presumption against Parliament being taken to have intended to give a statute retrospective effect, even if the language used in the statute might appear to create such effect." [Other examples follow.] "All these presumptions can be overridden by Parliament if it so chooses, but the stronger the constitutional principle the stronger the presumption that Parliament did not intend to override it and the stronger the material required, in terms of express language or clear necessary implication, before the inference can properly be drawn that it did so intend."

Para 84; The Secretary of State's submission "glossed over an important aspect of this starting point for the interpretation of the ECA 1972 and proceeded to a contention that the onus was on the claimants to point to express language in the statute removing the Crown's prerogative in relation to the conduct of international relations on behalf of the United Kingdom."

Para 85: "In our view, the Secretary of State's submission is flawed at this basic level.". This is reinforced by two constitutional principles [set out at Para 86 and Para 89]

Para 86: "First, the powerful constitutional principle that the Crown has no power to alter the law of the land [domestic law] is the product of an especially strong constitutional tradition in the United Kingdom"

Para 89: "The second principle is the well settled limitation on the constitutional understanding that the conduct of international relations is a matter for the Crown in the exercise of its prerogative powers." "It is precisely because the Crown's prerogative in the conduct of international relations has no effect on domestic law that the courts accept that this is a field of action left to the Crown."

[In the paragraphs leading to the Court's conclusion, the Court considered various cases that had been argued as supporting the Secretary of State's contention. However, the Court, through analysis of these cases, concluded that they did not have any weight in the context of the issue now before the Court. The detail of that analysis is not being reproduced here. The discussion did cover (Paras 103 and 104) some parallel cases in Northern Ireland relating to the Referendum outcome. These did not have an effect on the Court's judgment, although there have been press reports that they will be brought into play on the appeal to the Supreme Court - see below].

Para 111: "For the reasons we have set out above, we hold that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU [Treaty on European Union] to withdraw from the European Union".

Supreme Court Appeal

The government is appealing to the Supreme Court against the High Court's decision. It is understood that the appeal will be heard early in December, although judgment may not be given until the New Year.

The Supreme Court is the final court of appeal in the United Kingdom (ie England, Wales, Scotland and Northern Ireland) on civil matters, of which this case is one. It is also the final court of appeal for England, Wales and Northern Ireland on criminal matters. 

Court procedure allows an appeal from the Divisional Court (a part of the High Court which sits with two or three judges) to go straight to the Supreme Court without the need to appeal first to the Court of Appeal.

The author is a former practising solicitor and City law firm partner, and is a professionally qualified tour guide, specialising in Legal London. He delivers training to law students, trainee solicitors and qualified solicitors, and also lectures on London issues.

The picture at the beginning of the article is of part of Lincoln's Inn, seen from its gardens.

This article does not constitute, nor is it intended to constitute, legal advice, and no action should be taken or refrained from being taken in reliance on this article.

 

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