January 2017
UK – Supreme Court gives Parliament role in
triggering Article 50: what now?
With little more than two months to go before the UK
Government’s self-imposed deadline for triggering the
formal process for withdrawing from the EU, the
Government has promised to publish a White Paper on
its plans for Brexit following the UK Supreme Court’s
ruling this week.
Parliament’s role
On 24 January the Supreme Court of England and W ales published its
decision on the Secretary of State for Exiting the European Union’s appeal
against the High Court’s decision in the case brought by Gina Miller and
others on the process for serving notice to withdraw from the European
Union.
Contents
Parliament’s role ............... 1
The Supreme Court
Judgment .......................... 2
Background ................... 2
Requirement for an Act of
Parliament ..................... 3
The dissenting
judgments .................. 4
Devolution issues .......... 5
Other litigation................... 5
Implications ....................... 6
The Supreme Court considered two main issues:
> whether based solely on its prerogative powers the UK Government can
commence the withdrawal from the EU, by giving a withdrawal notification
under Article 50 of the Treaty on European Union (a “Notice”), without
authority from the UK Parliament; and
> whether consent of the devolved legislatures (the Northern Ireland
Assembly, Scottish Parliament and Welsh Assembly) is required for the
issuing of a Notice.
1
The Supreme Court decided, by a majority of 8 to 3, that an Act of the UK
Parliament is required to authorise ministers to give a Notice. However, it
decided unanimously that the devolved legislatures do not have any say in
the matter.
In light of the Supreme Court decision the UK Government is looking to act
quickly, so that parliamentary legislation is passed in time for the Prime
Minister’s planned 31 March 2017 deadline for issuing a Notice. The
Government introduced a short Article 50 Bill o n 26 January (available
here), with a view to holding its Second Reading debate in the House of
Commons on 31 January, completing the House of Commons process by midFebruary and obtaining Royal Assent (following passage through the House
1
The majority being Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord
Wilson, Lord Sumption and Lord Hodge and the dissenting judges being Lord Reed, Lord
Carnwath and Lord Hughes.
UK – Supreme Court gives Parliament role in triggering Article 50: what now?
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of Lords) on 13 March. Whether they will achieve this timetable is yet to be
seen.
While the Supreme Court was hearing the appeal in December 2016, the
House of Commons passed a non-binding motion calling on the UK
Government to invoke Article 50 by 31 March 2017. The motion provides
support for the conclusion that an Act to approve the giving of a Notice will be
passed. However, the shadow Brexit secretary, Keir Starmer, has indicated
that the Labour Party will seek to lay amendments to the Bill, to ensure
Government accountability in the withdrawal negotiation process.
Following the Supreme Court decision, on 25 January Theresa May
confirmed that the UK Government would produce a White Paper to allow for
parliamentary scrutiny of the UK Government’s plan for Brexit. This
announcement came following pressure for such a paper from MPs after the
Supreme Court decision was handed down. However, the Government is yet
to confirm when it will publish its White Paper, with Labour MPs calling for
access to information before they are asked to vote on triggering Article 50.
This would put even greater pressure on the Government’s timeline to 31
March 2017.
Many will be hoping that the White Paper will continue in the same vein as
the Prime Minister’s speech at Lancaster House on 17 January 2017. This
was welcomed, by businesses and indeed other EU governments, as giving a
greater degree of certainty on the likely final outcome of the UK’s withdrawal,
making it easier to plan for the future. Theresa May ruled out continuing
membership of the single market and made clear that the UK would be
seeking a new free trade agreement with the EU. She also spoke of a phased
approach to implementation of the ultimate agreement, so that businesses
have time to plan for the new arrangements. This might mean different parts
of these new arrangements coming into effect at different times.
The Prime Minister also confirmed in her 17 January speech that the UK
Parliament will have a vote in both Houses on the final deal before it comes
into force. However, the Government’s opposition in Parliament may seek to
amend the forthcoming Article 50 Bill to include ongoing commitments from
the Government to report to Parliament on the progress of negotiations and
greater clarity on the process for Parliament’s approval of the final withdrawal
terms and any future agreement with the EU.
In addition, a number of other cases are pending which might have potential
implications for the nature of Brexit negotiations. These are discussed at the
end of this briefing.
The Supreme Court Judgment
Background
UK membership of the European Union is given effect by the European
Communities Act 1972 (the “ECA”). This Act of Parliament incorporates into
UK law both the various treaties on the EU and also other types of EU law
UK – Supreme Court gives Parliament role in triggering Article 50: what now?
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that, under the treaties, have direct effect or direct applicability in EU member
states. Article 50 of the Treaty on European Union provides a mechanism for
a member state to withdraw from the EU in accordance with its “own
constitutional requirements” by giving a Notice. This starts the clock running
on EU treaties ceasing to apply to that member state, which occurs either two
years from the date of notification (unless an extension is agreed to by all
member states) or, if sooner, when a withdrawal agreement comes into force.
The key question before the Supreme Court was whether, in accordance with
the UK’s “own constitutional requirements”, the UK Government has the
ability to issue a Notice without the UK Parliament’s authorisation. In the UK,
the Government’s powers are limited to those either: (i) delegated to it by the
UK Parliament by means of statute; or (ii) derived from the royal prerogative
(‘rump’ powers which derive from the powers historically exercised by the
monarchy of the UK and in respect of which the UK Parliament has not
legislated). The most significant area in which the royal prerogative powers
are exercised is the conduct of international relations and the making and
unmaking of treaties on behalf of the United Kingdom. The judiciary is
responsible for ruling on disputes as to the scope of the UK Government’s
royal prerogative powers. These prerogative powers must also be considered
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in light of the overarching principle of parliamentary sovereignty, which
renders the UK Parliament the supreme legal authority in the UK.
At first instance, the High Court held that the UK Government was not able to
give a Notice under its prerogative powers and was required to first seek
authority from the UK Parliament. The Secretary of State for Exiting the
European Union appealed this decision to the Supreme Court.
In the Supreme Court case, the devolved governments of Scotland and
Wales also entered pleadings as intervening parties, submitting that the
exercise of the royal prerogative by the UK Government to give a Notice
would cut across the devolved governments’ legislative competencies. The
devolved governments claimed that the Notice would require either consent
of the devolved governments, or, at minimum, an Act of Parliament. Two
Northern Irish applications for judicial review in respect of the impact of the
peace settlement in Northern Ireland (the Good Friday Agreement) on the
constitutional requirements for triggering Article 50, Re McCord and Re
Agnew, were also joined to the appeal.
Requirement for an Act of Parliament
The majority judgment, set out by Lord Neuberger, was that an Act of
Parliament is required to authorise the UK Government’s issuing of a Notice,
based on a number of key considerations:
> The Government generally enjoys a prerogative power to enter into and
terminate treaties only to the extent this does not change UK domestic
law (or it is provided for by an Act of Parliament). The judgment flagged
2
Such principle of parliamentary supremacy being described by Professor A.V. Dicey, in a quote
cited with approval by the majority judgment [43], as Parliament having “the right to make or
unmake any law whatsoever; and further, no person or body is recognised by the law of England
as having a right to override or set aside the legislation of Parliament” (Introduction to the Study
of the Law of the Constitution, 8th ed, 1915, p. 38).
UK – Supreme Court gives Parliament role in triggering Article 50: what now?
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the difference between a governmental act which changes domestic law,
and one that has domestic consequences (i.e. either affecting legal rights
or changing the facts to which the law applies). The prerogative powers
may also be curtailed or abrogated by a statute’s express words or
necessary implication.
> Section 2 of the ECA provides the process by which EU law becomes a
source of UK law. W hilst the UK Government argued that section 2 of the
ECA provided power for the Government to withdraw from the EU, the
court held that there was an important difference between variations in
UK law occurring as a result of changes to EU law (contemplated by
section 2, and in respect of which section 2 will act as a “conduit”) and the
changes in UK law that would result from withdrawal from the EU treaties.
Withdrawal involves a “fundamental change to the UK’s constitutional
arrangements” and, as this would be the result of giving a Notice, such an
action would require parliamentary authorisation (at [79]).
> Withdrawal from the EU would result in the removal of at least one of the
three classes of existing domestic rights of UK residents, these being: (a)
rights capable of replication in UK law; (b) rights derived by UK citizens
from EU law in other member states; and (c) rights of participation in EU
institutions that could not be replicated in UK law.
> No clear language authorising the Government to withdraw from EU
treaties can be found in the ECA. Fundamental rights cannot be
overridden by general words in a statute. On the contrary, the ECA’s
intention was enlargement of what is now the EU.
> The judgment rejected the argument that governmental accountability via
judicial review is sufficient, constitutionally, to justify the exercise of such
power without parliamentary authority, especially in circumstances where
the effect of the action could not be reversed. Like the High Court, the
Supreme Court worked on the assumption, to which all parties agreed,
that service of a Notice is irrevocable and cannot be made conditionally.
This position was probably agreed to by the Government (at least in part)
to avoid the possibility of a referral on this point being made to the
European Court of Justice, which would have been politically unpalatable.
> In contrast to previous referenda, the statute authorising the 23 June
referendum did not authorise the issuing of a Notice without further
parliamentary authority as it did not stipulate what should happen in
response to the result.
The dissenting judgments
All three dissenting judges agreed (in separate judgments) that the effect of
EU law under the ECA is conditional upon EU treaties applying to the UK.
The dissenting judges held that the ECA does not impose a requirement or
show an intention regarding the UK’s EU membership and thus does not
affect the Government’s ability to give Notice under its prerogative power.
Contrary to the majority, the dissenting judges drew no distinction between
changes in domestic law resulting from variations in the body of EU law and
treaties and changes resulting from the UK’s withdrawal from the EU treaties.
UK – Supreme Court gives Parliament role in triggering Article 50: what now?
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The dissenting judges held that serving a Notice would not affect the rights of
UK residents, but rather would be the start of the political process of
negotiating. In this process the Government will be accountable to Parliament
and completion of the process would require some form of primary legislation.
As Lord Hughes summarised, the Respondents relied on the rule that “the
executive (Government) cannot change law made by Act of Parliament, nor
the common law” whereas the UK Government contended that the rule that
“the making and unmaking of treaties is a matter of foreign relations within the
competence of the government” applies and the former rule does not. Which
of these two takes precedence depends on a reading of the ECA and resulted
in the division between the majority and the dissenting judges.
Devolution issues
On the devolution issues brought before it by Scotland, Northern Ireland and
Wales, the Supreme Court held unanimously that the Sewel Convention, the
convention that the UK Parliament will not “normally” exercise its right to
legislate with regard to matters devolved to Scotland, Northern Ireland and
Wales without the agreement of the relevant devolved legislature, did not give
rise to a legally enforceable obligation (despite having been put on a statutory
basis in relation to Scotland by the Scotland Act 1998).
On the matters referred to the court in the Northern Irish cases, the court
unanimously held that consent of the Northern Ireland Assembly is not a legal
requirement for the passing of the relevant Act of Parliament, that section 1 of
the Northern Ireland Act 1998 (which gave the people of Northern Ireland the
right to determine whether to remain part of the UK or form part of a united
Ireland) does not support a legitimate expectation that the consent of the
people of Northern Ireland is required for the passing of the relevant Act of
Parliament and that the other three questions referred to the Supreme Court
were superseded.
Other litigation
Irish Proceedings
A letter before action was issued on 13 January on behalf of a crowd-funded
campaign led by Jolyon Maugham QC, as a precursor to Irish High Court
public interest proceedings seeking clarificatory and declaratory relief.
The letter before action indicates that a referral to the Court of Justice of the
European Union (“CJEU”) will be sought on three questions, not clear enough
to be determinable by an Irish Court alone, these being:
> whether it is certain that rights of Irish citizens resident in the UK and UK
citizens located in any of the other remaining 27 EU member states will
be lost (i.e. can a Notice, once given, be unilaterally revoked by the UK?);
> what rights as EU citizens will be lost (i.e. by triggering Article 50 will the
UK automatically leave the single market as well as the EU?); and
> when will these rights as European citizens be lost (i.e. might Article 50
have already been triggered?).
UK – Supreme Court gives Parliament role in triggering Article 50: what now?
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The letter before action states that several elected UK politicians will join Mr
Maugham as plaintiffs in the case. Their identities will be known by 27
January, the date by which proceedings will be issued against the State.
It is unclear whether the High Court (Ireland) will be willing to accept
jurisdiction in respect of these proceedings. However, if the CJEU ultimately
rules that a Notice is revocable it would enable the UK to reject the outcomes
of EU negotiations if deemed unacceptable, changing the balance of power
between the UK and the EU in the upcoming withdrawal negotiations.
Membership of the EEA
A claim for judicial review was filed against David Davis, Secretary of State
for Exiting the European Union, on 28 November 2016. The case was
initiated by the pro-single market think tank, British Influence, on behalf of
four anonymous claimants. The claimants argue that the UK can only leave
the EEA in accordance with the exit procedure outlined in Article 127 of the
EEA Agreement, under which at least twelve months’ written notice is
required. A preliminary hearing took place on 17 January 2017. A permission
hearing, listed for 3 February, will also deal with a parallel claim brought by
four individuals who live in the UK or in other EEA states.
Implications
With the Supreme Court appeal complete, the UK Government can now fully
focus its efforts on the path to issuing a Notice. Upcoming milestones, such
as the introduction of an Article 50 Bill, the subsequent parliamentary
approval process and the Government releasing its White Paper, may provide
further clarity on the approach to be taken by the UK Government to
negotiations with the EU. Whilst the Miller case has been of extreme interest
constitutionally, it is now for the Government to act in accordance with the
decision of the court. As Lord Carnwath said, at [274], “Lord Denning
famously spoke of the European Treaty as “like an incoming tide. It flows into
the estuaries and up the rivers. It cannot be held back...” (Bulmer Ltd v
Bollinger [1974] Ch 401, 418F). That process is now to be reversed.
Hydrologists may be able to suggest an appropriate analogy. On any view,
the legal and practical challenges will be enormous.”
Businesses should continue to prepare for Brexit in much the same way as
prior to the Supreme Court decision, mindful of Theresa May’s 31 March
2017 deadline for the issuing of a Notice and the potential for further insight
as a result of the Government’s White Paper.
UK – Supreme Court gives Parliament role in triggering Article 50: what now?
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The full judgment of the Supreme Court can be found here:
https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf
Contacts
Our summary of the Supreme Court hearing can be found here:
For further information
please contact:
http://www.linklaters.com/pdfs/mkt/london/uk-supreme-court-hearing-inrmiller-v-secretary-state-exiting-EU.pdf
Lucy Fergusson
Partner
The first instance judgment can be found here:
(+44) 20 7456 3386
https://www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-state-for-exitingthe-european-union/
[email protected]
Our summary of the first instance judgment can be found here:
http://www.linklaters.com/pdfs/mkt/london/uk-high-court-judgment-in-rmiller-vsecretary-of-state-for-exiting-EU.pdf
Ellen Maybery
Associate
(+44) 20 7456 4885
[email protected]
James Bowen
Associate
(+44) 20 7456 3690
[email protected]
Author: Ellen Maybery
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