Early November 2016, the Queen’s Bench Division of the High Court considered whether the UK Government/the Crown has the unilateral power under Article 50 to notify the European Council of the UK’s intention to leave the EU. The Court’s 3 November 2016 judgment in R (on the application of Gina Miller & Deir Tozetti Dos Santos) v Secretary for Exiting the European Union EWHC 2768 (Admin) was based on key principles of UK constitutional law allied to the domestic effect of the potential removal of three separate categories of rights arising under EU law. (Ms Miller is a UK national whereas Mr Dos Santos is a Spanish citizen working in London.)
Withdrawal from the EU
Article 50 allows a Member State to withdraw from the EU in accordance with its own constitutional requirements. As stated above, the first step is for the relevant Member State to notify the EU of its intention to leave under Article 50(2). Both the claimants and the UK Government agreed that an Article 50(2) notice is both irreversible and unconditional. (In other words, the UK will leave the EU two years after such notice is given (unless an extension is agreed with the EU). In addition, an Article 50 notice will not be subject to subsequent Parliamentary approval). Accordingly, the High Court noted that once this notice is given, the inevitable result is the complete exit of the UK. Accordingly, its consequent effect on EU law-related rights in both the UK, and on, UK citizens is direct.
Sovereignty of Parliament
The Court recalled that while the UK is a constitutional democracy subject to the rule of law, its constitution is not entirely written. Some of its primary law is to be found in statute. Other sources include recognised rules which govern the exercise of public power by distributing and defining the powers of different public bodies. The most fundamental rule of UK constitutional law is the sovereignty of the House of Commons and the House of Lords (i.e. Parliament). In other words, legislation enacted by Parliament is supreme save only where Parliament decides otherwise. The sole example of this is the European Communities Act 1972 (the ECA) which gives effect to EU law in the UK. That said, Parliament may repeal this and any other primary legislation.
The Court emphasised that the key aspect of the principle of Parliamentary sovereignty is that the UK Government has no power to alter legislation or common law. In other words, the Crown is subordinate to the law. As the renowned Elizabethan/Jacobean jurist, Sir Edward Coke reported “the King hath no prerogative, but that which the law of the land allows him.”
Another UK constitutional principle is that the negotiation of international agreements falls exclusively within the remit of the Crown. However, the making or unmaking of treaties creates effects on public international law not on domestic law. Without Parliamentary consent, the Crown cannot therefore confer or deprive legal or natural persons of statutory or common law rights.
Domestic effect of EU law
EU law contains rights for both individuals and companies which have direct effect. In other words, these rights may be relied upon in the national courts of EU Member States. As stated in the ECA, such rights, under the principle of the supremacy of EU law, over-ride domestic legislation. These basic features were established by EU case-law long before the UK joined the then European Communities back in 1973.
Given the principle of Parliamentary sovereignty, primary legislation, namely, the ECA, was required to incorporate EU law into UK domestic law. Subsequently, the UK High Court described this legislation as a constitutional statute whereby it is not subject to implied repeal by subsequent laws. Indeed, the ECA may only be repealed by express language in a later law or by necessary implication from the provisions of such a statute. Section 2(1) of the ECA makes all directly applicable EU law part of domestic law whereas Section 2(2) allows for the adoption of secondary legislation to implement EU Directives into UK law.
Three categories of rights
The High Court identified three distinct categories of rights arising under EU law. The first category includes rights which, in principle, are capable of replication should the UK withdraw from the EU. For example, Parliament could choose to maintain the rights of employees under the EU’s Working Time Directive. Indeed, a vast array of EU Directives and other laws have been implemented by UK primary and secondary legislation which will, unless repealed, continue to apply when the UK withdraws from the EU. That said, it will be up to Parliament whether to adopt the proposed Great Repeal Bill which is currently intended to enshrine EU law rights into domestic legislation. The second category comprises rights enjoyed by British citizens and companies in other EU Member States such as the freedom of establishment and free movement of persons. EU law requires the ‘host’ Member State to recognise and give effect to those rights. The third category includes rights with an effect in the domestic law of the UK which would be lost in the event of withdrawal. These ‘privileges’ that flow from membership of the EU ‘club’ include the right to stand and vote in direct elections to the European Parliament.
The High Court found that rights in the first category may or may not be preserved by new UK primary legislation. Moreover, such laws may not be enacted by the time withdrawal under Article 50 takes place, if at all. Regarding the second category, the Secretary of State argued that these rights (e.g. the right of a British citizen to work in France) are the product of EU law in conjunction with the law of the host Member State. However, the Court held that Parliament was aware that the passing of the ECA would lead to the ratification of the relevant EU Treaties thus granting UK individuals and companies rights under EU laws which are enforceable in other Member States. Regarding the third category, the Secretary of State admitted that these rights will be lost once the UK leaves the EU.
The parties’ arguments
The principal argument of Miller and Dos Santos was that the Crown’s proposal to give unilateral notice under Article 50 infringes the key constitutional principle of the sovereignty of Parliament since it would adversely affect the rights of legal and natural persons. Moreover, Parliament has not delegated this authority to the Crown either expressly or by necessary implication. Notifying the EU under Article 50 would prevent Parliament from making that decision.
The Secretary of State counter-argued by stating that unless express words could be found in primary legislation, Parliament could not be seen to have abrogated the Crown’s prerogative powers regarding the EU Treaties. The Secretary of State replies that the Crown’s unilateral power in the context of foreign relations extends to the giving of notice under Article 50. Furthermore, this power could only be removed by express primary legislation or by legislation with the same effect by implication. Neither the ECA nor subsequent statutes contain any such wording.
High Court’s judgment
In examining the question of whether the UK Government may use the Crown’s prerogative powers in the conduct of international relations to give notice under Article 50, the Court found that the UK Government’s analysis went too far. It rejected the Secretary of State’s argument that Parliament intended through the ECA that the existence of any EU rights in national law was dependent on the UK’s continued membership of the EU for three main reasons.
Firstly, the ECA, as mentioned above, is a constitutional statute. There is a presumption that Parliament intends to legislate in accordance with the relevant constitutional principles particularly where these are strong. In other words, the stronger the constitutional principle, the more readily it can be inferred that the wording used by Parliament intended to reflect that principle. As previously stated, the principle of Parliamentary sovereignty is the most fundamental rule of UK constitutional law. The Court found that the ECA did not expressly or by clear implication grant the Crown the prerogative to vary the law of the land. Secondly, since Parliament’s adoption of the ECA introduced the concept of the direct effect of EU law into UK law, the Court held that it is not plausible to argue that the Crown could unilaterally repeal this legislation. Moreover, the ECA is, as a major constitutional statute, exempt from the doctrine of implied repeal by the adoption of subsequent inconsistent legislation. Finally, the UK Government’s unilateral power of action lies solely in the field of international relations. However, the presumption of non-interference by Parliament with this prerogative is undermined where the proposed action of the UK Government in international affairs will ultimately result in significant changes to national law.
The Court thus concluded that the Crown has no power, under the ECA, to withdraw from the EU since this would undermine the relevant EU law rights introduced into domestic law while also having a negative impact on the rights of UK persons living/established elsewhere in the EU.
The UK Government has appealed the High Court’s decision to the Supreme Court, the UK’s highest court of appeal, thus ‘leapfrogging’ the Court of Appeal. (The UK Supreme Court was established to assume the judicial functions of the House of Lords, it heard its first cases in 2009.) Reflecting the importance of this case, the Supreme Court has confirmed that each of its eleven judges will sit on the appeal panel.
Press reports suggest that, in a complete reversal of what it argued before the High Court, the UK Government may decide to argue that a notice under Article 50(2) may be withdrawn. If it makes (and is allowed by the Supreme Court to make) this argument, it will be difficult for Ms Miller and Mr dos Santos to contend that this notice will inevitably expunge their relevant EU law rights. That said, the 3 November judgment, made by a three-person panel including two of the most senior judges in the UK, namely, the Lord Chief Justice and the Master of the Rolls, may be sufficiently robust to withstand the Crown’s appeal. The Supreme Court is likely to give its judgment in early 2017.
This article was published in the Law Society Gazette in December 2016