The following post is an attempt to explain the Brexit case ruling in an accessible way (not just for lawyers) and examines some of the possibilities on appeal to the Supreme Court.
Everybody knows that in our country, the government (by which I mean “the Executive”) cannot just lock up people with red hair, or people who criticise it on Facebook. The reason Britain differs from dictatorships where this sort of thing does happen is that we respect the aspect of the rule of law which says that the government does not have power to do what it likes. Government powers come from parliament and it can only imprison people if it has been given power to do so by parliament.
The government has chosen not to ask Parliament to confer authority on it as to how it might negotiate exit from the European Union. Instead, the government asserts it can negotiate withdrawal without any specific power being given to it by Parliament.
Consider some examples of other limits of the powers of the executive branch of government. The government couldn’t take away a person’s liberty just because they have red hair or because they are Muslim. Indeed, even if we had a referendum about whether people with red hair, or Muslims etc, should be imprisoned without charge, that still wouldn’t mean the government could just start detaining them. There would have to be an Act of Parliament allowing the government to do it (and no doubt scrutiny of such powers in the courts). To take another example, the government couldn’t just decide to abolish Scottish people’s right to elect Members of the Scottish Parliament: Parliament would have to repeal the Scotland Act 1998.
The High Court said that leaving the EU was similar to these examples. The government can’t just take away rights given to us by parliament, such as those to elect members of the EU parliament ,without being given power to do so by parliament.
The EU referendum was not a complete part of any decision to leave the EU.
The government’s argument, however, was that it did not need parliament to give it power to leave the EU. It could decide for itself to leave the EU, and itself initiate the article 50 withdrawal process using the “royal prerogative”. The royal prerogative encompasses a small set of government powers that by ancient tradition do not emanate from Parliament. One of the aspects of the royal prerogative is the signing of international treaties. The court rejected the government’s argument and said that because starting the article 50 process would inevitably lead to the UK leaving the EU, to start the process would inevitably involve trampling on rights which had been given to us by parliament (such as the right to vote). It therefore needed Parliament to decide to leave the EU and to authorise the notification of the intention to withdraw from the EU.
The Appeal to the Supreme Court- 7 December
I offer one thought on the forthcoming appeal.
The reason it seems to me that the government lost the argument in the High Court is that it agreed with the Claimants that once the pistol is fired on article 50, the bullet cannot be put back in the gun. Starting the article 50 process is tantamount to the government dictating that the UK is leaving the EU, thereby overriding all the parliamentary legislation that says we enjoy the rights conferred by membership.
However, Professor Paul Craig (one of the leading EU lawyers) and others do not read article 50 that way. They say it is a cardinal principle of law that a party can walk away from a deal (including negotiations on a treaty) until it is concluded: Up until the end of the two year period in article 50, the leaving state remains a member of the EU and can change its mind. There have been rumours in the press that the government may indeed be considering changing tack on the question whether article 50 is irrevocable once initiated.
The problem for the government is that if it tries to argue that the notification under article 50 is revocable then this raises an argument about a point of EU law. The proper way to resolve a point of EU law which could be decided by the court either way is for the matter to be referred by the UK court to the Court of Justice of the European Union. The government is presumably unwilling to go down that road for political reasons and because it perceives this would cause delay.
However, this is a false short-cut. Once the article 50 notification has been given, the question of its revocability could in any event be liable to further litigation, so in truth no time is saved by trying to keep this legal issue out of court. Given the issue is unclear it seems to me the Supreme Court should refer this question to the CJEU (even if the parties are in agreement on it). That would lead to an initial delay, but may well save time later, particularly as it would probably strengthen the government’s argument that it can proceed under the royal prerogative.
If the court were to find that the initiation of the article 50 process is revocable, the corollary, it seems to me, is that an Act of parliament might well be required at some other point prior to giving effect to the UK’s exit from the EU. In other words, the court might say that Parliament must approve any course of action that actually results in the UK exiting the EU (because that would lead to the loss of rights), but such parliamentary approval is not required until the end of the Brexit negotiations. It may in the end be more democratic if parliament has to approve what is actually proposed as our new relationship with the EU, rather than seek to provide some negotiating guidelines at the outset.
The government could of course avoid the whole issue by simply putting legislation before Parliament: it is only its choice to proceed in a secretive way that necessitates all this legal wrangling.