The High Court has today ruled that the government cannot rely on the royal prerogative and must get approval from Parliament before triggering Article 50 of the Lisbon Treaty.
Two weeks and two days after the last submissions were made, at 10am on 3 November 2016, the Lord Chief Justice, Lord Thomas of Cwmgiedd, read out a summary of the judgment, which was delivered jointly by the three judges who heard the case.
The court found unanimously in favour of the claimants. This means that the government does not have legal authority to use royal prerogative powers to trigger Article 50 without parliamentary approval.
Why did the court reach this decision?
Both sides of the case re-iterated that this was not a question of whether or not the UK should leave the EU: the sole question for the court was whether the government was entitled to trigger Article 50 without reference to parliament, by using the royal prerogative.
This was really, then, a case about the UK’s constitution. Unlike many countries, the UK’s constitution is not contained in a single written document. Rather, as the court explained in this case, it takes its form through statutes that have “particular constitutional importance” and various fundamental rules of law that are recognised by Parliament and the courts.
The prerogative: a relic of a past age?
The court reiterated that the most fundamental rule of UK constitutional law is that of Parliamentary sovereignty. The royal prerogative is the residue of powers that are left to the Crown, or as Lord Reid put it in a 1965 case referred to by the court in the present case:
“The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute.”
This means that primary legislation passed by Parliament cannot be undone by the Executive.
A constitutional statute
The claimants’ case was that the triggering of Article 50 would necessarily undo primary legislation. Specifically, they contended that the European Communities Act 1972 (ECA) gave (and gives) UK citizens various rights that would be taken away by withdrawal from the EU. Those rights are given by statute and can only be removed by statute – not by exercise of the prerogative. Some of these rights might be capable of being reinstated through national law, but there were other categories of rights that either depended on other sovereign states, so were outside the gift of Parliament (such as rights of free movement), or would not be capable of reinstatement at all (such as the right to refer a case to the Court of Justice of the EU).
The government’s argument was that the entry and exit from international treaties is a function that is reserved for the government under the prerogative, and that Parliament would need to have expressly curtailed this right if it did not want the government to have the power to withdraw from the treaties constituting the EU.
A flawed argument
In an uncompromising judgment, the court found that the government’s argument was “flawed at a basic level”. Central to the court’s reasoning was that the ECA is a “constitutional statute”, which affords it special significance. For example, it has previously been found to be exempt from the doctrine of ‘implied repeal’ (where in the event of inconsistency between different statutes, the later one prevails). Instead, clear language is needed to repeal any part of the ECA with a later statute. In a similar way, the court found, unless Parliament had made it very clear that the government had the power to undo the rights conferred by the ECA, the royal prerogative could not be relied upon to take action that would have this effect.
The court also held that the very reason for the convention for the government being able to enter and exit international treaties is because the government cannot, on its own, make or repeal domestic law. Those treaties only exist on an ‘international plane’. The withdrawal from the EU, though, would be different as it would inexorably lead to the loss of rights conferred by Parliament.
What happens next?
Despite calls from the claimants not to do so, the government has already confirmed that it will appeal this decision. The case will ‘leapfrog’ the Court of Appeal, to be heard by the Supreme Court, which has already set aside time in early December for the hearing. Such is the importance of the case that all eleven Supreme Court judges have agreed to hear the case.
This decision casts doubt on the government’s plan to trigger Article 50 before the end of March 2017. A decision by the Supreme Court is unlikely before January 2017, leaving the Executive with relatively little time to get Parliament’s approval (if the decision is not overturned) before its self-imposed deadline of 31 March 2017.
One possibility is that the government could initiate the process of obtaining parliamentary consent in parallel with pressing on with an appeal. Those in both houses of Parliament that have been pushing the government for greater scrutiny over the Brexit negotiations are likely to use this decision to press for more information and even a vote on the form of Brexit that the UK should be seeking. If such demands are made as a condition of giving approval to trigger Article 50, it is also conceivable that the government could decide to call an early General Election, seeking a clearer mandate from the electorate.
The contrary view, though, is that MPs will regard themselves as bound to follow the referendum result and so to put aside anti-Brexit views and simply vote to approve the triggering of Article 50, without trying to extract concessions from the government. If that view prevails, the possibility of a General Election recedes.
One thing is clear for now
One thing is clear: the decision is binding for now at least, and the government will not be triggering Article 50 without either the approval of Parliament or this decision being overturned on appeal. A legal challenge that was launched in the summer continues to write chapters in the understanding of the UK’s constitution and its withdrawal from the EU.