Home > A review of the Supreme Court’s Judgment – where that leaves the process of leaving the EU and how we got here

Last week the Supreme Court ruled by a majority of 8-3 (R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5) that parliamentary approval was required to authorize the trigger of the Article 50 Notice for Britain to leave the EC. The Withdrawal Bill was published (The Bill’s First Reading) last Thursday, the first of at least 10 Parliamentary steps (see the post on this Blog dated 26 January). Yesterday evening the Bill was approved after its Second Reading by 498 to 114 votes, with Kenneth Clarke being the only conservative MP to vote against and 47 Labour MPs disobeying their leader and doing likewise.

The Supreme Court made it clear that the Judgment was nothing to do with the merits of the referendum result or the basis upon which the exit is to be made. Therefore, in terms of the implications of the Judgment for Brexit, at this stage little further analysis seems necessary. However, the wider constructional significance of the Judgment will long influence the carrying out of the business of government. At a time when governance by populism appears to be theme, the rule of law and the checks and balances of the activities of public bodies have a fundamental, but inevitably controversial, role.

So much has been said and written about Brexit, that it is not at all easy to identify even the key issues let alone the likely implications professional or personal. I have set down five themes as wayfinders to try and navigate through the whirlwind of constitutional and political change.

  1. The purpose and content of the Referendum Act 2015
  2. Brexit and the shared society
  3. The Judgment of the Supreme Court
  4. The immediate consequence of the Judgment
  5. The future

1. The purpose and content of the Referendum Act 2015

The discontent with Europe has of course been a major sore affecting the country, and in particular the Conservative Party, for some time. In essence, it seems that Mr Cameron had to deliver the Referendum to ensure that he had sufficient support as leader from within even his own party. He also had to negotiate, in vain as it happened, with EU Ministers in an attempt to offer a package of reforms that would hopefully ensure support for remaining in the EU.

Presumably, the unconstrained nature of the Referendum Act 2015 reflects that need to maintain that support. In particular:

  • The Act makes no reference to what would follow the Referendum result in the event of the result being in favour of leaving. The Supreme Court contrasted this (as well as the 1975 Act on the EEC membership referendum) with other examples such as the Scotland Act 1978 providing for devolution and the Parliamentary Voting System and Constituencies Act 2011 ([2017] UKSC 5 [116]-[119], pp.38-39).
  • The 2015 Act did not supply a statutory power to the Crown to give notice under Article 50.
  • The Act was passed against a background that included a clear briefing paper to parliamentarians explaining that the Referendum was intended only to be advisory. However, the Supreme Court ([2017] UKSC 5 at para. [119], p.39) noted that some Ministers had nonetheless described it as decisive.
  • Notwithstanding the constitutional, legislative and political upheaval that a leave vote would inevitably entail, there was no requirement for a qualified majority.

2. Brexit and the shared society

The Leave vote and the verbal attacks and threats to those who dare to question the wisdom of the majority, are a symptom of more than just a severe dislike for the EC. The vote appears to be the product of a variety of themes of discontent which make up the nest into which the Brexit movement has landed. We repeatedly hear or read phrases such as “we want our country back” and we “want to able to pass our own laws and be behove to no one else”.

The voting majority of 52%-48% in favour of leaving is being, perhaps understandably under our democratic system, interpreted by both sides as the “will the people”. It is being employed, sometimes somewhat indiscriminately, as the most powerful and overriding weapon. Leave supporters were in the majority and that fact has to be respected. As the Supreme Court stated, the Referendum result may itself have no legal effect but it is not devoid of effect, as its force is political rather than legal ([2017] UKSC 5 at para. [124], p.40).

Given the hand that has been dealt by Mr Cameron’s Government, there is therefore no legitimate basis for the remainers to seek go behind the majority decision as such. However, that applies to the fact of leaving and not to the basis upon which that should then take place. So, there is, equally in my view, no legitimate basis for the leavers to assume that there exists majority support for the basis upon which the leaving should be achieved. Such decisions have to be made in accordance with our unwritten, yet so far robust, constitution.

The PM has now translated the current state of affairs, and in particular the Referendum result, into her vision of “the shared society”. This appears to be based on an acceptance of the Government having a duty to intervene and correct “burning injustices” in modern Britain. This reflects Mrs May’s stated objective of coming to the aid of the JAM (“just about managing”) element of society that is ailing in under the establishment. We have thus moved on from Mr Cameron’s “Big Society”, which focussed on getting charities to help tackle inequality and in communities being more involved in activities usually carried out by public authorities, and Margaret Thatcher’s claim that there is “no such thing as society”. The “Big Society” vision spawned the Localism Act 2011 which introduced the neighourhood planning regime. Whether the “Shared Society” will have a similar planning or environmental legislative consequence remains to be seen. The further delayed Housing White Paper may provide us with some clues.

3. The Judgment of the Supreme Court

The Judgment outlines the relationship between the UK and the EU between 1971-2016 ([2017] UKSC 5 at paras. [13]–[33], 7-12) and then summarises the arguments on the identified main issue – the European Communities Act 1972 and prerogative powers ([2017] UKSC 5 at paras. [34]-[39], pp.12-14). It addresses that key issue against the constitutional background and considers the Divisional Court’s analysis of the effect of the 1972 Act ([2017] UKSC 5 at paras. [69]-[73]). The analysis and conclusion of that main issue are set out at paras. [74]–[101].

The Court considered that the 1972 Act was the conduit by which EU law was introduced into domestic law and constituted EU law as an independent and overriding source of domestic law. The rights incorporated into domestic law through s.2 varied with the UK’s obligations from time to time under the EU treaties. However, the provisions of a new treaty were only brought into domestic law once it was statutorily added to the definition of “Treaties” in s.1(2).

Upon UK withdrawal, EU law would cease to be a source of domestic law. As they would no longer be paramount, but subject to domestic repeal or amendment, even EU rules transposed into domestic law would have a different status. For this to be brought about by ministerial action alone, the Court held, would be inconsistent with fundamental principle for such far-reaching constitutional change, particularly when the relevant source of law had been created by Parliament and given supremacy in the hierarchy of law sources

The majority (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge) held that far from indicating that ministers had the power to withdraw from the EU Treaties, the provisions of the 1972 Act, particularly when considered in the light of the unusual nature of those Treaties and the Act’s unusual legislative history, support the contrary view (para. [88], p.30) The Court disagreed (at para. 89, pp.30-31) with Lloyd LJ’s conclusion in R. v Secretary of State for Foreign and Commonwealth Affairs Ex p. Lord Rees-Mogg [1994] Q.B. 552,in so far as he held that ministers could exercise prerogative power to withdraw from the EU Treaties.

The majority therefore considered that, in light of the terms and effect of the 1972 Act, and subject to considering the effect of subsequent legislation and events, the prerogative could not be invoked by ministers to justify giving Article 50 notice – ministers require the authority of primary legislation before they can take that course (para. [101], p.34)

The Court then considered the Secretary of State’s reliance on the legislation and events after 1972 (paras. [103]-[125], pp.35-41). However, the Court held that the implementation of the Referendum result required a change in the law of the land, and statute had not provided for that change and thus the change must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation ([2017] UKSC 5 para. [121], pp.39-40). The Court concluded that the Referendum did not change the law in a way that would allow ministers to withdraw the UK from the EU without legislation

With regard to the devolution question, it was held that in providing that the devolved bodies could not act in breach of EU law and empowering them to implement it, the devolution legislation did not require the UK to remain an EU member. Relations with the EU were not devolved matters and the devolved legislatures did not have a parallel legislative competence in relation to withdrawal.

Finally, with regard to the Judgment, the reasoning and conclusions reached by the minority (Lord Reed, Lord Carnwath and Lord Hughes) should not be overlooked. Whatever one’s views, the dissenting Judgments are worthy of serious consideration:

  • Lord Reed, in a very extensive speech, also provides a very illuminating overview of relevant constitutional history and case law ([2017] UKSC 5 at paras. [159]-[178], pp.51-60).
  • He concluded (at para. [177], pp. 59-60, with the full reasons for this given at paras. [179]-[241], pp.60 -82) that since the effect of EU law in the UK is entirely dependent on the 1972 Act, no alteration to the fundamental rule governing recognition of sources of law has resulted from membership of the EU or will result from notification under Article 50. He therefore concluded that it followed that Ministers are entitled to give notification under article 50, in the exercise of prerogative powers, without requiring authorisation by a further Act of Parliament.
  • Lord Carnwath agreed with the reasons of Lord Reed (paras. [243]-[274], pp.83-94). He considered that the Divisional Court took too narrow a view of the constitutional principles at stake (para. [274], p.94). He considered that the article 50 process must and will involve a partnership between Parliament and the Executive but that does not mean that legislation is required simply to initiate it. Legislation will undoubtedly be required to implement withdrawal, but the process, including the form and timing of any legislation, can and should be determined by Parliament not by the courts. That, Lord Carnwath held, involves no breach of the constitutional principles which have been entrenched in our law since the 17th century, and is no threat to the fundamental principle of Parliamentary sovereignty.
  • It is interesting to note that, with regard to the issue on the impact on individual interests by leaving the EU, Lord Carnwath stated that it is difficult to talk of the Executive “foisting” on Parliament a chain of events that flows directly from the result of the Referendum which it authorised by the 2015 Act (para. [272], pp.93-94). Further, he held that however desirable it would be for issues of detail to be addressed at this stage, it is wholly inconsistent with the structure of article 50.
  • Lord Hughes held that although either interpretation of the 1972 Act argued for was possible, he preferred the view of the Act as set out in the reasons of Lord Reed (para.[281], p.96).

For those who wish a more academic insight into the issues and the implications of the Judgment, I would recommend, as Lord Carnwath referred to, the UK Constitutional Law Blog site.

4. The immediate consequences of the Judgment

Two days after the Judgment the Withdrawal Bill was introduced into the Commons: for helpful background to this see the Briefing in the Commons Library on the Withdrawal Bill.

Following two days of debate the Bill passed its second reading. For a breakdown of the voting click here.

However, as that article indicates, it cannot be assumed that it will all be plain sailing. It is reported for example that some Conservative MPs are threatening to rebel unless the PM guarantees the rights of more than three million EU citizens to stay in Britain, while there is also concern about the plan to remove the U.K. from an EU-wide nuclear treaty. Others want Parliament to have a stronger say on any deal.

The White Paper for the Brexit negotiations has now just been published.

It is likely that this may be used as a basis for seeking to re-write the Bill when it enters the next stage of parliamentary detailed scrutiny starting next week, with the Committee Stage on Monday 6th February.

The White Paper on a first read says mostly what we already know. However, it appears that there is going to be an Immigration Bill. On the single market, it is aimed in some sectors to keep within the single market (e.g. for car manufacturing).

5. The future: the known and the unknown

We know that the Government’s intention to trigger Article 50 by the end of March 2017 remains and is on target at present, notwithstanding the court proceedings. That of course is subject to the remaining Parliamentary steps being completed in time. It may also be subject to other legal proceedings: click here.

The thereafter, in terms of the implications for planning and environmental law for example, has been the subject of many posts on this and the Environmental Law Blog and seminars held by Landmark. One such seminar, on the Environmental Information Update, was held in Chambers last Monday evening. The chair and last speaker, James Maurici QC, addressed the future of the Environmental Information Regulations 2004 (EIR) post Brexit. I recommend his presentation to you.

The EIR were made under para. 2(2) of Sched 2 of the 1972 Act to implement the Council Directive on public access to environmental information. So it will be a provision that will be considered for review, amendment or scrapping. James highlighted the range of possibilities with regard to the retention or removal or alteration of the EIR and the various arguments for each. One particular point that merits highlighting was the fact that the regulations reflect the requirements of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, to which the UK will remain a party even in the Post Brexit world.

This is just one, but one very clear, example of the complexity and uncertainty with regard to the future legislative position. That is reflected in the Environmental Audit Committee’s Report “The Future of the Natural Environment after the EU Referendum”, which was the subject of a post on this Blog on the 6th January 2017.

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