Parliament prevails

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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.

15 thoughts on “Parliament prevails

  1. The court’s logic, as articluated in this article, intrigues me.

    Either:

    1) the ECA 1972 was sufficient on its own to give UK citizens the rights alluded to – in which case, neither the triggering of Article 50 nor leaving the EU would take away those rights; or

    2) it was the ECA 1972 in conjunction with membership of the EU which gave UK citizens those rights, in which case it one cannot simply apply the principle that “legislation enacted by the Crown [in] Parliament is supreme” in order to conclude that parliament’s consent is required.

    Put in lay terms, case (2) reduces to this. The ECA gave UK citizens certain rights in the event that the UK is a member of the EU. To argue that it is “unlikely that Parliament intended to leave their continued existence in the hands of the Crown through the exercise of its prerogative powers” presumes that the primary purpose of the ECA was to give UK citizens certain rights, with the UK’s membership of the EU merely the mechanism to achieve that goal.

    An alternative interpretation of the passage of the l;egislation in 1972 was that parliament’s primary purpose was for the UK to gain the benefits of membership of the EU, with the ECA – and the UK citizen’s individual rights – being merely a requirement of the EU in order to achieve the primary goal.

  2. I’m am a disgruntled remainer, but I still think this is bad interpretation of the British Constitution. I completely buy the argument of the international plane. The Parliament’s role is to legislate. We can leave the EU treaties and not affect any of our domestic legislation, in fact we can domestically continue to legislate to bind ourselves to future EU treaties that we have no control over, if we so wish it. Sure we would lose rights in over countries, but we only had those rights because the other member states have their own domestic laws which allow us to live there. Parliament has no control over that, because they are not our laws to govern.

  3. Vast numbers of people who voted to leave the Euopean Union claim that they did so because of sovereignty, but how many of them understand what is meant by sovereignty? How many of them understand the relationship between sovereignty and UK constitutional law. How many of them know that we have a representative democracy and how many of them know what is meant by representative democracy?

    I blame those who led the remain campaign and the leave campaign for failing to fully inform the public about the constitutional procedure for triggering Article 50 if (as happened) the leave campaign won the referendum vote. I attended some of the earliest meetings of the remain campaign and was ridiculed when I suggested that we should discuss our constitution.

    The public and media who accusing the judge’s ruling on triggering Article 50 as “undemocratic” were silent when Chris Grayling removed the public’s democratic right to challenge bad laws through judicial review by cutting legal aid for judicial review. Dominic Grieve makes a subtle observation when he states that:
    “At the end of the day you can get primary legislation through parliament quite quickly. It has been known to be done in 48 hours, but that’s as an emergency.” I believe he refers to is Jobseekers (Back to Work Schemes) Act 2013 which:
    “As of July 2014, the Act has itself been found to be unlawful, contravening Article 6 of the European Convention on Human Rights.” https://en.wikipedia.org/wiki/Jobseekers_(Back_to_Work_Schemes)_Act_2013

    The Coalition did a back room deal with Labour over this Act because neither the Tories nor Labour wanted to be saddled with the huge debt of paying back all the withheld benefits to people who could cite the case. After it was ruled “unlawful” IDS and his opposite number Liam Byrne said that they didn’t realise that it was unconstitutional.
    These same MPs failed to explain anything about how our constitution works and what is meant by sovereignty.

    They failed to explain to the public that referendums are not like elections. They are more like a consultation for opinion. They failed to explain to the public that during a referendum sovereignty passed (temporarily) to the public and once they have voted it passes back to Parliament. They failed to explain to the public that Parliament is not the PM or the Government. It is the House of Commons and the House of Lords. They failed to explain to the public that it would be unconstitutional to trigger Article 50 without consulting all members of both Houses and without a vote from both Houses after the details had been debated. The result of this failure might potentially result in an expression of violence from those who voted to leave the European Union.

  4. It seems to me the judgment is premature. By triggering Article 50, the executive is not changing the law. Parliament will be asked to do that by repealing the ECA 1972. If it refuses then there will be a problem but if agrees, it (not the executive) will change the rights and obligations created by the ECA 1972. It is not for the Courts to assume that parliament will not agree. The court has erected a question of timing into one of constitutional principle.

  5. It is manifestly ridiculous for judges to rule that by exercising clause 50 the government would be “altering the law of the land”.
    When Parliament agreed (together with the governments of the other member States) that any country could leave the EU by invoking clause 50 they implied that the government could trigger this clause at will as there was no mention in the then legislation that further parliamentary authority would be needed from Parliament to do so.
    Q.E.D

  6. Excellent piece – well done.

    Regards,

    John W Cook
    Chairman Patcham Community Action Team
    Hate Crime Ambassador & Community Advocate
    @Patcham_LAT

    m – + 44 (0) 7528 472231
    e – john.cook@pcat.org.uk

    Sent from my iPhone

    >

  7. The Honourable Judge is absolutely correct on the issue of Parliament being Sovereign in the British Constitution which all first year law student has to learn.
    I wish to pose this question, who made up the Parliament?
    It is not just the physical building in Westminster. All the British citizens through their elected representatives in Parliament, make up the Parliament as we all understand.
    So if that is the case, since the British Citizens, in the larger Parliament so to speak, has voted in favour of exit, then it becomes academic for Parliament, in the narrow sense, to further vote on this issue.
    I would argue that the point is purely academic because in practice Members of Parliament should vote accordingly to what their electorates have said loud and clear.

    (Just an opinion from a lawyer practising in Malaysia who is trained in England)

    • I think you meant “constituents” there. When you talk about “all British citizens” I would just point out that I am one of about a million British citizens who were excluded from voting in the referendum because we are long-term expatriates. We are still citizens! A case on that point that went up to the Supreme Court (and was reported here) was unsuccessful. In that case Lady Hale expressed sympathy with our situation but applied the law (one point being that the right to vote did not trump an Act of Parliament, i.e. the Referendum Act). It’s interesting isn’t it that none of the leavers were then complaining about an “undemocratic” judgment!

      • Thanks Gordon for finding the right word for me.

        I studied the British Constitution 35 years ago so it got a bit rusty with some words but on this issue I felt it was very nostalgic for me to share a point.

        I am practising Commercial Law now.

        Regards, Mr. K.W.Chong Senior Partner

        KW Chong & Partners _Advocates & Solicitors_ No 83, Jalan Sultan Abdul Jalil, | T: (05) 253 4008 Greentown, 30450 Ipoh, Perak | F: (05) 253 9192 E: kwchong@kwchong.com.my | W: http://www.kwchong.com.my

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