Article 50 legal challenges – an update

  • Insight

14 November 2016

The decision of the High Court of Justice in England that parliamentary authority is required before Article 50 can be triggered has itself triggered further questions.

This briefing note considers the main points covered in the decision and examines the subsequent response of the UK Government, which is appealing the decision to the UK Supreme Court. It also summarises the responses of the Scottish and Welsh Governments who will now enter the appeal to the Supreme Court and looks at the issues raised in a similar case in Northern Ireland, which is now likely to be joined to the UK Supreme Court appeal.

On 3 November 2016, the High Court of Justice in England ruled in the case of R (Miller) and others -v- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (“R (Miller)”) that, under UK constitutional law, the UK Government does not have a Crown prerogative power to trigger Article 50 to commence the process for the UK to withdraw from the European Union and that parliamentary authority is required before Article 50 can be triggered.

The full decision of the Court is available here.

Summary of R (Miller) decision

In its judgement in R (Miller), the High Court indicated that “the sole question in this case is whether, as a matter of the constitutional law of the United Kingdom, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union”.

The Court decided that neither the EU Referendum Act 2015, nor any other Act of Parliament, conferred any statutory authority on the UK Government to give notice under Article 50 of the Treaty on European Union (“TEU”) and that, when the UK joined the European Communities (as the EU was then known), the UK Parliament had to pass the European Communities Act 1972 to give effect to EU law in each of the jurisdictions of the UK.

At the outset, the Court noted in its judgement that the question before it was purely a question of law, as to whether the UK Government could use the Crown’s prerogative powers to give notice of withdrawal from the EU under Article 50. It emphasised that the Court had nothing to say on the merits or demerits of withdrawal from the UK by the EU as it considered that these were matters of policy and political judgement, rather than law.

The Court also noted that it was “common ground” between the UK Government and the claimaints in the legal action that, once notice has been given under Article 50, it was irrevocable, i.e. it could not then be withdrawn, it could not be conditional and it could not be qualified, e.g. by saying that it would only take effect if Parliament agreed to the outcome of negotiations that follow once notice is given. It said that “Once a notice is given, it will inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union and from the relevant Treaties at the end of the two year period, subject only to an agreement on an extension of time between the United Kingdom and the European Council (acting unanimously) as set out in Article 50(3) or the earlier making of a withdrawal agreement between the United Kingdom and the European Council (acting by a qualified majority and with the consent of the European Parliament).” The Court concluded that, if notice is given under Article 50, some rights under EU law, as incorporated into domestic law by the 1972 Act, are “inevitably lost once the Article 50 withdrawal process is completed”.

The Court discussed the “fundamental” rule in UK constitutional law that the UK Parliament is sovereign and can make or unmake any law whatsoever and that no Parliament can bind its successors. It also noted that part of this fundamental rule was the principle that the Crown’s prerogative power cannot be used to override legislation that has been enacted by Parliament. The Court stated that the UK Government has accepted that giving notice under Article 50 would inevitably change legislation that had been enacted by Parliament, i.e. it would lead to the 1972 Act ceasing to have effect in due course.

The Court rejected what it described as the main contention in the UK Government’s case that, in enacting the 1972 Act, Parliament must have intended that the Crown would retain its prerogative power to “effect a withdrawal” from the EU Treaties and thereby choose whether EU law should continue to have effect in UK domestic law. The Court described that argument as “contrary both to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers.”

Although the High Court’s decision that parliamentary authority was needed to trigger Article 50 did not specify the form of parliamentary authority required, the claimants who raised the legal proceedings, and the devolved Governments and administrations who are seeking to join the proceedings on appeal, support the view that legislation is required in the UK Parliament, as well as the consent of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, before Article 50 is triggered. The Supreme Court is expected to give greater clarity on this point.

UK Government appeal to the UK Supreme Court

The UK Government is appealing the High Court’s decision to the UK Supreme Court. On 8 November 2016, the Supreme Court announced that the UK Government had been granted permission to appeal, by a panel of three judges - Lords Neuberger, Kerr and Mance.  The UK Government published its main grounds of appeal on 10 November 2016, contending that the High Court’s ruling on Article 50 was wrong because:

  • the Court held that it was a necessary implication of the European Communities Act 1972 that the Crown had no prerogative power to trigger Article 50 and was mistaken in simply looking at whether the 1972 Act conferred any “positive authority” on the UK Government to use the prerogative power to give such notice to the EU;
  • the Court should have held that the Crown in the form of the UK Government retains the power to give effect to the result of the EU Referendum, as provided for in the EU Referendum Act 2015, and that giving effect to the result means giving notice under Article 50 as the first step in that process;
  • the UK Government’s understanding of the process for triggering Article 50 is “the constitutionally normal and unsurprising position, given the UK’s longstanding dualist approach to international law”. A dualist approach to international law (as opposed to a monist approach) essentially means that international law is not considered to be directly applicable in the domestic law of a State and must be translated into domestic law, for example, by an Act of Parliament; and
  • the 1972 Act and more recent legislation in relation to the EU, such as the European Union Amendment Act 2008, the European Union Act 2011 and the European Union Referendum Act 2015 did not remove the relevant prerogative power of the UK Government.

The grounds of appeal can be read here.

The Court has allocated four days to hear the appeal, from 5th to 8 December 2016. The hearing will take place in the largest courtroom available at the Supreme Court in London, in front of a panel comprising 11 Justices of the Supreme Court and chaired by Lord Neuberger. The number of days for the hearing could still vary, depending on the submissions received from the existing parties to the appeal, as well as the number of additional parties who intervene and the number of related cases that become ‘joined’ to the appeal. The proceedings will be streamed live on the Court’s website. It is anticipated that the Court will reserve its judgement at the end of the hearing and seek to issue a judgement early in 2017.

Article 50 – reversible or irreversible?

The process of triggering Article 50 has been compared to pulling the trigger on a gun, with nothing to stop the bullet from striking, once it has been released. From the point of “common ground” between parties in the High Court that Article 50 is irreversible and irrevocable, the Court concluded that “the effect of the giving of notice under Article 50 on relevant rights is direct, even though the Article 50 process will take a while to be worked through”.

The Scottish cross-bench peer, Lord Kerr of Kinlochard, who is understood to be the main author of Article 50 and is now on the Scottish First Minister’s Standing Council on Europe, has argued that Article 50 is in fact revocable and so the UK could decide to stay in the EU after all, even once ‘Brexit’ negotiations are underway. His views are recorded in a BBC interview.

If Lord Kerr is correct in his view that Article 50 is revocable, this might assist the UK Government in defence of its position in this case, i.e. if Article 50 is revocable then the effect of it being triggered is not as ‘direct’ after all. It is perhaps surprising, in legal terms, that the UK Government did not adopt this position at the High Court. However, it may not be so surprising in political terms, as adopting such a position could place the UK Government in a difficult situation in the future, for example, if it is put under pressure to have a second referendum on a final deal, before the time period under Article 50 expires. The Secretary of State for Exiting the European Union, David Davis, has stated that the UK Government is not in favour of a second EU referendum.

If the UK Government was to indicate that it no longer accepted the previous “common ground” that Article 50 is irreversible, the UK Supreme Court may have to reach a judgement on this point and refer the matter to the European Court of Justice for a ruling on the effect of Article 50. However, even if the Supreme Court decided that Article 50 is revocable, this may not go far enough to undermine the decision of the High Court, if some of the other arguments made by the claimants and accepted by the High Court as to why the Crown prerogative cannot be used to trigger Article 50 are also accepted by the Supreme Court.

Intervention by the Scottish Government/Riaghaltas na h-Alba

The First Minister has announced that the Lord Advocate will make an application to the UK Supreme Court on behalf of the Scottish Government, to intervene in the Article 50 appeal proceedings being brought by the UK Government. She noted the decision of the High Court that the UK Government could not use the Crown prerogative to trigger Article 50 and commence a process to remove rights that are enshrined in law passed by the UK Parliament. She has stated that: “The Scottish Government is clear that triggering Article 50 will directly affect devolved interests and rights in Scotland.  And triggering Article 50 will inevitably deprive Scottish people and Scottish businesses of rights and freedoms that they currently enjoy. It simply cannot be right that those rights can be removed by the UK Government on the say-so of a Conservative Prime Minister without parliamentary debate, scrutiny or consent. So, in my view, legislation should be required at Westminster and the consent of the Scottish Parliament should be sought before Article 50 is triggered. Let me be clear - I recognise and respect the right of England and Wales to leave the European Union. This is not an attempt to veto that process.” The text of the First Minister’s statement can be read here.

In relation to the Scottish Government’s view that legislation is required in the UK Parliament, as well as consent from the Scottish Parliament, their argument is that, because triggering Article 50 would impact on legislative competence and devolved matters, this normally requires a legislative consent motion to be passed by the Scottish Parliament. This principle is contained within section 28(8) of the Scotland Act 1998, which provides that: “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”. Prior to this recent addition to the Scotland Act 1998, the principle was a convention in UK constitutional law and reflected in a Memorandum of Understanding between the UK Government and devolved bodies and in Devolution Guidance Note 10 (Post-Devolution Primary Legislation affecting Scotland) (“DGN 10”).

Essentially, DGN 10 states that, if proposed UK primary legislation contained provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish ministers, (para. 4(III), DGN 10), there should be prior consultations with the Scottish Government and the legislative consent of the Scottish Parliament obtained by a legislative consent motion passed by the Parliament. However, both the Scotland Act 1998 (s28(8)) and the preceding convention contain the word “normally” in relation to circumstances in which the consent of the Scottish Parliament would be sought. As reflected in section 28(7) of the Scotland Act 1998, the devolution of power to Scotland was not an absolute transfer of power, but rather a sharing of power, with the UK Parliament retaining the absolute power to legislate in devolved areas. Section 28(8) remains subject to section 28(7) which states that “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”. This one sub-section in the Scotland Act reflects the essence of devolution of power to Scotland.  

Intervention by the Welsh Government/Llywodraeth Cymru

The Welsh Government announced on 4 November 2016 that it would also apply to intervene in the appeal. The Counsel General for Wales, Mick Antoniw, stated that he would use his power under section 67 of the Government of Wales Act 2006 to apply to the UK Supreme Court to be granted permission to intervene in the appeal, in order to “make representations” about the implications for Wales of the UK Government’s proposed action to use prerogative powers to trigger Article 50. He considered the judgement raised “issues of profound importance not only in relation to the concept of Parliamentary Sovereignty but also in relation to the wider constitutional arrangements of the United Kingdom and the legal framework for devolution”. He noted that questions had been raised about the use of the prerogative power which could have an impact in the following areas:

  1. legislative competence of the National Assembly for Wales;
  2. powers of the Welsh Ministers;
  3. legal and constitutional relationships of the Assembly to Parliament;
  4. legal and constitutional relationships of the Welsh Government to the UK Government;
  5. society and economy of Wales.

Northern Ireland Executive

In the case of McCord’s (Raymond) Application [2016] NIQB 85 (“the McCord case”), the High Court of Justice in Northern Ireland dealt with two applications for judicial review against the UK Government’s intention to trigger Article 50 using prerogative powers. The first application was by Raymond McCord, who described himself to the Court as a British and European Citizen and a “victims’ campaigner”. The second application was by a number of parties including elected politicians, human rights organisations and organisations from the voluntary sector.

Five key contentions were made by the Northern Ireland applicants in respect of the UK Government’s position on triggering Article 50:

  1. Prerogative power cannot be exercised for the purpose of notification in accordance with Article 50(2) because it was displaced by the Northern Ireland Act 1998 read along with the Belfast Agreement and the British-Irish Agreement and other constitutional provisions.  An Act of Parliament is required to trigger Article 50(2).
  2. If an Act of Parliament is required, there is a requirement for a legislative consent motion to be passed by the Northern Ireland Assembly before legislation can be passed by the UK Parliament authorising notification in accordance with Article 50(2).  
  3. There are a variety of public law restraints on the exercise of prerogative power, including a requirement to take all relevant considerations into account and not give excessive weight to the referendum result.  
  4. There has been a failure by the Northern Ireland Office to comply, prior to notification being given under Article 50, with the terms of section 75 of the Northern Ireland Act 1998 and with the terms of its own equality scheme.  
  5. The Good Friday Agreement creates a substantive legitimate expectation of no change in Northern Ireland’s constitutional status without the consent of the people of Northern Ireland and Article 50 cannot be triggered without that consent.  

The Court delivered its judgement in the McCord case on 28 October 2016. It rejected the contention that the Good Friday Agreement creates a legitimate expectation that Article 50 cannot be triggered without the consent of the people of Northern Ireland, but granted leave in respect of the other 4 issues, with these being “held over”, pending the decision in R (Miller). It is anticipated that the Northern Ireland proceedings in respect of these outstanding issues will be joined to the appeal proceedings in the Supreme Court in R (Miller), to be heard in December 2016.

Consequences if UK Supreme Court refuses the UK Government Appeal

If the UK Supreme Court refuses the UK Government’s appeal, then it is likely that a constitutional requirement for the UK Government to seek parliamentary authority to trigger Article 50 will impact upon the current timetable of spring 2017 for an Article 50 notice to be given to the EU by the UK Government. In such circumstances, the Supreme Court would be expected to make clear the type of parliamentary authority required to trigger Article 50 and could decide that this should be authority based on a new Act of the UK Parliament, to be passed by both Houses of Parliament and with consent from devolved Parliaments and Assemblies.

It is possible that MPs from opposition parties across the political spectrum, from across the UK and perhaps even from the Government’s own back-benches, could vote against Article 50 being triggered, in spite of the EU referendum result, if they are not content with what they are being asked to vote for or consider that they do not have sufficient information about the UK Government’s proposed negotiating position. Some MPs in the UK Parliament have already indicated that they may be prepared to vote against the triggering of Article 50.

The Supreme Court’s decision could therefore have significant implications for the UK as a whole and the future of its devolved nations.

Further information

For more information about any of the issues discussed in this briefing note, please contact Fiona Killen or Ailidh Callander.