Parliament prevails

3 November 2016 by Dominic Ruck Keene

In R (on the application of Gina Miller and Ors) v The Secretary of State for the European Union, the High Court, in a masterly exposition of the principles of constitutional law and statutory interpretation, held that the Secretary of State did not have the power under the Crown’s prerogative to give notice under Article 50 and thereby begin the process under which the United Kingdom will leave the European Union.

Sir Oliver Cromwell said in 1644 “We study the glory of God, and the honour and liberty of parliament, for which we unanimously fight, without seeking our own interests… I profess I could never satisfy myself on the justness of this war, but from the authority of the parliament to maintain itself in its rights; and in this cause I hope to prove myself an honest man and single-hearted.” I suspect that Cromwell will be reading the judgment delivered today and chuckling (if he ever would do something so frivolous) with pleasure at the sight of the High Court roundly defending the sovereignty of Parliament.

The Court began its judgment by carefully delineating the limits of its role and pre-emptively defending itself against accusations of meddling in the separation of powers. It emphasised that the sole question was whether as a matter of law, the Government could use its prerogative powers to give notice of withdrawal from the EU under the process set out by Article 50 TEU.

Having defined the exam question, the Court went on to give a text book summary of the key principles of UK constitutional law:

“It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme (we will use the familiar shorthand and refer simply to Parliament). Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this…An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers. But the constitutional limits on the prerogative powers of the Crown are more extensive than this. The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised. Outside those boundaries the Crown has no power to alter the law of the land, whether it be common law or contained in legislation.

This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It has its roots well before the war between the Crown and Parliament in the seventeenth century but was decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognised ever since.”

The Court went on to consider another constitutional principle – that of the Crown’s prerogative to conduct international relations – and emphasised that:

“The Crown’s prerogative power to conduct international relations is regarded as wide and as being outside the purview of the courts precisely because the Crown cannot, in ordinary circumstances, alter domestic law by using such power to make or unmake a treaty. By making and unmaking treaties the Crown creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law. It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights… conferred by common law or statute or change domestic law in any way without the intervention of Parliament.”

The Court also referred to the constitutional importance of the European Communities Act 1972, and the unique context created by the interplay between rights and obligations that have arisen through action taken on the international plane, by entry into and continued membership of the EU and creation of EU law in the relevant Treaties and by law-making institutions of the European Union; and the content of domestic law.

The Court reviewed the various rights that could potentially be lost to UK citizens as a result of withdrawal from the EU following notice under Article 50, and held that there were a number of such rights applicable in domestic law that would necessarily be lost. There were three such categories:

• those which are in principle capable of replication in domestic law if the United Kingdom does withdraw from the European Union;
• those enjoyed by British citizens and companies in relation to their activities in other Member States, as provided for by EU;
• those which have an effect in the domestic law of the United Kingdom, which would be lost upon withdrawal from the European Union and which could not be replicated in domestic legislation.

The Court held that rights in all three categories would be lost on withdrawal from the EU.

The Court began its consideration of the key legal question by summarising the relevant principles of statutory interpretation, holding that:

“Statutory interpretation, particularly of a constitutional statute …must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislating in the terms it did… Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them and not to undermine them. One reads the text of the statute in the light of constitutional principle. … the stronger the constitutional principle the stronger the presumption that Parliament did not intend to override it and the stronger the material required, in terms of express language or clear necessary implication, before the inference can properly be drawn that in fact it did so intend. Similarly, the stronger the constitutional principle, the more readily can it be inferred that words used by Parliament were intended to carry a meaning which reflects the principle.

We emphasise this feature of the case because the Secretary of State’s submission, in our view, glossed over an important aspect of this starting point for the interpretation of the ECA 1972 and proceeded to a contention that the onus was on the claimants to point to express language in the statute removing the Crown’s prerogative in relation to the conduct of international relations on behalf of the United Kingdom. The Secretary of State’s submission left out part of the relevant constitutional background. It was omitted, despite the Secretary of State making recourse to this approach to statutory interpretation a keystone of his own submission that the conduct of international relations is a matter for the Crown in the exercise of its prerogative powers. He made it so in order to argue that express (or at any rate especially clear) language would need to be found in the ECA 1972 before it could be inferred that Parliament intended to remove the Crown’s prerogative power to take steps to remove the United Kingdom from the European Communities and the Community Treaties. Despite this, the Secretary of State’s submission on section 2(1) of the ECA 1972 gave no value to the usual constitutional principle that, unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers. In our view, the Secretary’ of State’s submission is flawed at this basic level.“

The Court then reinforced this interpretation by reference to the powerful constitutional principle that the Crown has no power to alter the law of the land by use of its prerogative powers, which is the product of an especially strong constitutional tradition in the United Kingdom. The Court held:

“It would be surprising indeed if, in the light of that tradition, Parliament, as the sovereign body under our constitution, intended to leave the continued existence of all the rights it introduced into domestic law by enacting section 2(1) of the ECA 1972 (and, in the case of category (ii) rights, which it passed the ECA 1972 to bring into existence) subject to the choice of the Crown in the exercise of its prerogative powers as to whether to allow the Community Treaties to continue in place or to take the United Kingdom out of them. … The wide and profound extent of the legal changes in domestic law created by the ECA 1972 makes it especially unlikely that Parliament intended to leave their continued existence in the hands of the Crown through the exercise of its prerogative powers. Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again….Since in enacting the ECA 1972 as a statute of major constitutional importance Parliament has indicated that it should be exempt from casual implied repeal by Parliament itself, still less can it be thought to be likely that Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative powers.”

The Court therefore held that when interpreting the ECA 1972, Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers:

“The ECA 1972 cannot be regarded as silent on the question of what happens to EU rights in domestic law if the Crown seeks to take action on the international plane to undo them. Either the Act reserves power to the Crown to do that, including by giving notice under Article 50, or it does not. In our view, it clearly does not.”

The Court briefly considered the Government’s submission that the Referendum Act 2015 supported the contention that Parliament had decided not to limit the prerogative power to give notice and held:

“That Act falls to be interpreted in light of the basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy which apply in the United Kingdom, which lead to the conclusion that a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. No such language is used in the 2015 Referendum Act.Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.”

Comment

The Government has unsurprisingly stated that it will appeal. However, in my view the detailed and logical analysis performed by the High Court, rooted as it is in a deep understanding and reference to core constitutional principles and the relevant case law, will be a hard one to challenge.