Brexit Bulletins | February 6, 2017

Supreme Court decision on serving the Article 50 notice: What does it mean and is it a harbinger of what Brexit negotiations will be like?

By majority of 8 to 3 the Supreme Court (SC) has held that the Government does not have the power, under our unwritten constitution, to serve Article 50 Notice to trigger the commencement of negotiations that will lead to the UK’s exit from the EU by exercising its prerogative powers. Rather, the SC has held that, before Article 50 Notice is served, the Government will have to present a Bill before Parliament in order to proceed by way of primary legislation, namely an act of parliament will have to be passed.

The case required the SC to reconcile two conflicting constitutional rules:

  • that the executive (government ministers exercising powers on behalf of the Crown) cannot change domestic law grounded in our common law system or made by act of parliament; and
  • the making/entering into and the unmaking/exiting from treaties is a matter of foreign relations and is squarely within the competence of the executive exercising its prerogative powers.

Lord Neuberger gave the speech on behalf of the majority and stressed that treaties act on the “international plane” – they take effect under international law only, are not governed by the domestic laws of the state signatories and do not become part of UK domestic law so as to affect the rights of citizens, rather they are binding on the UK under international law norms.  He also made clear that: “it is inherent in its residual nature that a prerogative power will be displaced in the field which becomes occupied by a corresponding power conferred or regulated by statute“.

Analysing, in great detail, the UK’s membership of the EU, and the European Communities Act 1972 (“ECA”) (particularly sections 1 and 2) Lord Neuberger concluded that the status of the EU treaties is very different because, for the first time in our history, the ECA authorised “a dynamic process by which, without further primary legislation…, EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes“.  The ECA is also the statutory basis for the primacy, under UK law, of the decisions of the European Court.  However, Lord Neuberger went on to note that “EU law can only enjoy a status in domestic law… for as long as the 1972 Act continues to apply and that, of course, can only be a matter for parliament“.

It is because the ECA has such a special/unique constitutional status, being “the “conduit pipe” by which EU law is introduced into UK domestic law” that (conflating the arguments) it was common ground before the SC that UK domestic law will change as a result of the UK ceasing to be a party to the EU treaties because certain rights enjoyed by UK citizens would inevitably be lost and, as part of the exit process, the ECA repealed.  Accordingly, the act of serving notice under Article 50 needs an act of parliament and cannot be done using the executive’s prerogative powers alone.  Furthermore, Lord Neuberger went on to hold that the fact that Parliament would be involved in the process of withdrawal (any negotiated interim arrangements and the UK’s future relationship with the EU would go before Parliament) missed the point; Parliament, under our constitution, has to be involved from the outset, not only once the die is already cast – or, to use the analogy of Lord Pannick QC for Mrs Miller, when ministers (using the prerogative power) give Article 50 Notice, they will be “pulling… the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the treaties will cease to apply“.

The government’s arguments that the European Union (Amendment) Act 2008 and the European Union Act 2011 implicitly recognised the prerogative power to withdraw because they omitted any reference to Article 50(2) was rejected; Lord Neuberger noting that an omission in a statute can rarely, if ever, be used to justify inferring a fundamental change in the domestic law.

Furthermore, in relation to the 1975 and 2015 Acts, which authorised the referenda in 1975 and 2016, the fact that neither Act made provision for any consequences of either possible outcome (unusual in our legal system – see the examples given by Lord Neuberger at paragraph 118 of his Judgment), rather they just provided that a referendum should be held did not help the Government’s case because it matters not whether Ministers (who speak for the Government and not Parliament) stated that the outcome was advisory or decisive; what they say in such circumstances is not the law, rather statements of political intention.  The point of constitutional principle is (according to the majority of the SC) clear, namely that “Where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through parliamentary legislation“.

Finally, in relation to the Sewel Convention – under which the UK parliament and the devolved institutions cooperate when overlapping legislative competencies may compete – Lord Neuberger confirmed the well-established principle that the courts cannot enforce political convention, noting that “Judges are neither parents or guardians of political conventions; they are merely observers“.

The SC decision as a harbinger?

The case was argued over 4 days, by 57 advocates, including 26 QCs, appearing on behalf the Appellant and 13 other parties, before a full, 11 person, Supreme Court. The point being that the law is granular and all the devil is in the detail of numerous overlapping sources of law, requiring analysis of sections, sub and sub-sub sections of statutes, together with common law, convention and associated case law.

The exit process triggered by Article 50 is partly political, but it is also, as the SC demonstrated in support of its findings that an act of parliament is needed in order to serve the Art 50 Notice, a legal process. The legal process of exit could be as tortuous as the Art 50 debate/case. It will require at least another act of parliament, the Great Repeal Act, to incorporate all current EU law into the laws of the UK (some 65% of UK law is derived from EU law, namely Regulations (which have direct effect and there are some 17,000 of them) and Directives) and then a process to review all that legacy EU law to decide which to keep and which to abandon.

Furthermore, our negotiations in relation to exit and our future relationship with the EU will be conducted against the legal backdrop of our international law obligations under the EU treaties, including Article 127 which may of itself spawn another Supreme Court case to decide how we can exit from the internal/single market, if that is what we, the people, and/or what Parliament want to do. There is also the question of our World Trade Organisation membership/obligations and whether we can remain a member following our exit from the EU (our membership of the WTO was negotiated for us by the EU) and our ability, under our international law obligations, to enter bilateral trade treaties with third countries. It is little wonder that our civil service and government feel overwhelmed and that there is speculation that, in order to do what is required in relation to our exit from the EU, we will need another 30,000 or so civil servants who will have to be supported by numerous lawyers experienced in the law and art of trade negotiations.

We may have the political will to leave on pragmatic terms that amount to a “win win” for us and the EU; the politicians of the key jurisdictions of the remaining EU members may also want such a pragmatic deal, but it could all be held/stymied by detailed legal analysis by those who may not share the pragmatic political will of our government and its “allies”.