Article 50: Was the Government Really Divorced From Reality? Analysing the High Court’s Decision in Miller

This post considers the implications of the High Court’s decision in Miller that Parliament needs to grant the government the authority to invoke Art 50. The first post below discusses the High Court judgment itself, and the prospects of the government’s appeal being successful before the Supreme Court. A second post will follow shortly, which considers the political implications, should the Supreme Court not overturn the High Court’s decision.

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4355150_5a63142d“Flawed at this basic level” and “divorced from reality” are two of the most withering conclusions of the High Court in R (Miller) v Secretary of State for Exiting the European Union, on the government’s argument that Parliament’s authorisation is not required to invoke Article 50. There is no doubt that the decision is a spectacular defeat for the government’s legal team, headed by the Attorney General. However, the judgment has led to a hugely overblown reaction of sections of the media. This blog aims to show that the decision does not “block Brexit” in any way, but also that the judgment raises questions which can only be resolved by the Supreme Court.

What Was Decided?

The basic conclusion of the High Court is Parliament’s consent must be required to authorise invoking Art 50. This is because once invoked, Article 50 leads to a process that necessarily involves taking away rights which are part of UK law through to the European Communities Act 1972. This conclusion rests on a venerable constitutional principle, stemming from the Case of Proclamations in 1610, that the royal prerogative cannot be used to change any part of the common law or an Act of Parliament.

What should be clear from this, is that the High Court were deciding a legal question, namely what is the appropriate constitutional process by which the UK as a state invokes Article 50. It cannot be overemphasised enough that here is nothing in the judgment that “blocks Brexit”. The conclusion of the High Court is that Parliament needs to be involved in the process to invoke Article 50, most likely through passing legislation which authorises the government. As the royal prerogative is part of common law, it is for the courts to determine the legal relationship between the government and parliament and between common law and statute. Of course, this does raise the prospect that Parliament may not enact the necessary legislation. If that occurs it would not be The Lord Chief Justice, The Master of Rolls and Lord Justice Sales that have blocked Brexit, but those MPs or members of the House of Lords that voted against the legislation. The headlines in the Daily Mail, The Sun and The Telegraph, in particular, have been scurrilous, ridiculous and utterly ghastly.

Analysis of the Judgment

None of this is to say that the judgement is perfect. Far from it. The government has confirmed that it will appeal to the Supreme Court with the appeal expected to start on 7th December. A notable feature is that the appeal will be heard by an (as far as I know) unprecedented eleven-judge panel. The next question is how likely the government will succeed on appeal?

An initial reading of the High Court’s judgment raises some significant constitutional questions. Put simply; the High Court embarks on nothing short of a magical mystery tour of interpretation by concluding that Parliament intention when passing the European Communities Act 1972, was to pass that a “constitutional statute” of fundamental importance, some thirty years before this controversial idea emerged in Thorburn. Even if that is correct, the notion of a “constitutional statute” as traditionally understood, only protects it against implied repeal, meaning that the 1972 Act must be either repealed or amended expressly. This is nothing to do with using the prerogative to invoke Art 50.

Invoking Article 50 itself will not repeal or amend the 1972 Act (although further legislation will repeal the 1972 Act once negotiations have been concluded – as proposals for the Great Reform Bill show). The High Court then appears to extend this notion by finding that the royal prerogative cannot be used to remove the legal effect of a constitutional statute [para 88]. The idea of a constitutional statute is controversial amongst constitutional lawyers, and the High Court have extended the effect of constitutional statutes without any consideration of the debate of the underlying concept. Indeed, the Supreme Court declined the opportunity in the HS2 case to approve this idea expressly.

There is arguably one major flaw at the heart of the High Court’s reasoning. Connected to the finding that the 1972 Act is a constitutional statute is the conclusion that Parliament, in passing the 1972 Act is taken to have intended to limit the royal prerogative to conduct international affairs by requiring legislation to leave the EU. This can only be assumed because this intention cannot be found in any express language, nor can it be necessarily implied from reading the 1972 Act.

This assumption can be challenged. For example, John Finnis has made an analogy to double tax treaties, and how in 1972 Parliament was plainly aware that double tax treaties entered into by the government can have a great impact on UK law. It has long been understood that the government can (and on occasion has) unilaterally terminated a double tax treaty with another country without the requiring consent of Parliament. The parallel with Article 50 is clear, and there is little evidence that Parliament in 1972 intended to make any changes regarding the power of the royal prerogative.

Even if the High Court’s conclusion on this point is accepted, and Finnis’s point about double tax treaties is irrelevant, there remains a further difficulty about the assumption that Parliament is intended to have made. As stated above, this assumption is made despite a lack of express language or any necessary implication based on the language used in the 1972 Act to support such a conclusion. Yet, as Carl Gardner highlights in his excellent blog post, the High Court dismissed the government’s argument that the power to invoke Article 50 remained with the royal prerogative because there was no express language in the statute saying so. In short, the High Court concluded that Parliament can be assumed to limit prerogative powers, but cannot be assumed to have intended for the prerogative power to be retained.  Given that generally, the royal prerogative exists to the extent that it has been left untouched by Parliament or statute (and for this reason, is often referred to as that “residue of powers” still in the hands of the government), this seems at the very least logically unsound.

It’s intriguing that the High Court described the government’s argument on this point as being “flawed at this basic level” when surely the paradox just described above required far more discussion than can be found in the judgment. The Policy Exchange’s Judicial Power Project, have published further penetrating criticisms of the High Court’s decision with a series of posts available here.

A great irony is that while the judgment has been proclaimed as a great success for the power of Parliament and parliamentary sovereignty, the judiciary appear to be developing deeper principles of parliamentary intention. In this instance, the principles applied have sought to curtail the royal prerogative. However, last year in R (Evans) v Attorney General, the Supreme Court applied many of these principles with the effect of depriving sections of the Freedom of Information Act 2000 of almost all practical effect, despite the clear wording used by Parliament.

Another great irony is that the High Court relied on Dicey’s notions of parliamentary sovereignty when Dicey was one of the first influential figures to advocate using the referendums to resolve fundamental constitutional reasons within our parliamentary democracy. The High Court contains scant  discussion of the constitutional implications of the referendum itself. While the court is there to resolve the legal arguments, the British constitution remains a peculiar mixture of law and politics, and the solution of legal issues must include an account of their political context. Lord Bingham’s judgment in R (Attorney General) v Jackson is fine example of this, as he explained in detail the political context underlying the Parliament Act 1911. Finally, the judgment also made only a very brief attempt to reconcile their decision with the conclusion of the Northern Irish High Court in which stated that the royal prerogative could be used to invoke Art 50.

Will the European Court of Justice Get Involved?

When the case reaches the Supreme Court, an issue which could be reopened is whether a notification of an intention to withdraw from the EU under Article 50 can be revoked. The case in the High Court preceded on the basis that any notification could not be revoked. Yet, as Article 50 is silent on this point, this is at least arguable, and some opinion suggests that a notification under Article 50 is revocable.

If this is the case, then as the Lord Chief Justice stated during the hearing, it would “blow the claimants’ case out of the water”. As Article 50 itself is silent on this point, this is a matter of EU law which means that a conclusive answer can only be sought from the Court of Justice of the EU (commonly called the ECJ). There is an expedited procedure whereby the ECJ can hear a case in around three months. Of course, should a reference to the ECJ be made, the great irony would be that it is the EU’s court which would be effectively deciding how the UK will leave the EU.

Overall, this discussion shows that there are several hooks on which the government can base their appeal, and some of those give the government an opportunity to challenge the fundamentals of the High Court’s reasoning. The government may benefit from all eleven Supreme Court judges hearing the case, as it is possible that the more radical voices of Lord Neuberger and Lady Hale (as shown by judgments such as Evans) may be drowned out by more conservative voices such as Lord Sumption. Whether the government succeeds is uncertain, but a unanimous decision amongst all eleven is extremely unlikely.

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