After the government lost in the High Court in a bid to trigger Brexit without consulting parliament, David Mundy and Oliver Spencer consider what this major constitutional ruling could mean for the UK
The High Court has ruled against the government and found that it does not have power to trigger Article 50 of the Treaty on the European Union (the mechanism by which withdrawal from the European Union (EU) must be effected) using “prerogative powers” (discretionary powers which used to be exercised by the Crown but which now belong to the government).
The High Court’s decision in R (on the application of Miller & Dos Santos) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) was based on the constitutional significance of the European Communities Act 1972 (“the 1972 Act”), by which the UK government formally joined Europe and by which EU law became (and becomes) part of the UK’s legal system.
The High Court considered the rights given to UK citizens under the 1972 Act – for example, our rights of freedom of movement within the member states and to vote in EU elections – were important individual rights created by parliament in passing the 1972 Act, and not merely the product of joining the EU.
The claimants argued that the government’s decision to trigger Article 50 inexorably leads to these rights under the 1972 Act being removed. This would be unlawful because only parliament can take them away. Furthermore, it is a principle of our constitution that the government alone is not able to repeal or modify an act of parliament under prerogative powers.
The government argued that it was entitled to trigger Article 50. This was because parliament had intended, when it passed the 1972 Act, that the rights created by it were subject to removal by the government, if a future government decided to leave the EU. The court disagreed.
The Supreme Court stage
The government has appealed to the Supreme Court and the case will be heard over four days from 5 December. For the first time a full panel (11 justices) will hear the appeal. We can expect a decision in the new year.
The Welsh and Scottish devolved administrations have both asked to intervene in the appeal so that they can argue their respective cases that, if the Westminster parliament is required to be consulted on Article 50, so too should they.
If the government wins in the Supreme Court, its timetable to trigger Article 50 in spring 2017 stays on track. But if the government loses, the future is less than clear.
The government had previously intended to trigger Article 50 in March 2017. This timetable did not factor in any parliamentary time either to hold a vote approving the triggering of Article 50 and certainly not the passage of legislation through both houses of parliament.
A straightforward ‘yes’ or ‘no’ vote?
It is possible that the government may seek a mandate to trigger Article 50 by a simple vote in each house. The simplest and quickest way of obtaining parliamentary approval to trigger Article 50 is to hold a vote in the House of Commons. Labour seems to have confirmed that it would not oppose a vote on triggering Article 50. Even with Liberal Democrat, SNP and Conservative “Remain” MPs refusing to vote in favour of triggering Article 50, the government might be confident of winning a vote in the Commons.
However, it is unclear whether a vote in the House of Commons (and even an additional one in the Lords) would allow the government to trigger Article 50. Based on the court’s ruling at least, an act of parliament may be required to amend or repeal the 1972 Act and confer approval. This certainly seems to be the result of the High Court decision, which implies a need to amend or repeal the 1972 Act. David Davis, secretary of state for exiting the EU, has conceded that it would be “logical” that an act of parliament would be required. It is possible however that, even it upholds the High Court’s decision, the Supreme Court may conclude differently on that point.
The complex legislative process
If the government proceeds by way of a bill (leading to an act) authorising the government to trigger Article 50, it could take the form of a simple measure conferring parliamentary approval. However, if forced by opposition pressure, the government may have to include more detailed legislation setting out its timetable and negotiating objectives.
It is possible that, emboldened by the need for parliamentary approval, the Commons could try to assert its authority more directly, for example by insisting on giving final approval of the negotiated settlement reached by the government and the remaining member states. This would presuppose that the Article 50 process, once invoked, is capable of separate scrutiny and approval – a potentially doubtful proposition, given the involvement of the other existing member states.
A bill would certainly need to be passed by both Houses of Parliament and the government does not have a working majority in the House of Lords, where there is a significant majority of pro-Remain peers. Peers may delay the passage of the bill by moving amendments, such as requiring the UK to remain in the single market.
All in all, a flexing by parliament of its muscles, in the light of its enhanced constitutional role as approved by the court, could make the passage of a bill much more hazardous than the government would like.
Could Brexit still be prevented?
With a dwindling majority, a potentially troublesome bill invoking tensions in the government and the Conservatives generally, and an opposed Second Chamber, the government could have its hands full. As events on 23 June and across the Atlantic show, nothing is certain.
David Mundy is a partner and Roll A Parliamentary Agent, and Oliver Spencer is a trainee solicitor at Bircham Dyson Bell
