Hurrah for the judges and the rule of law

Sue Millns
Sue Millns

The judgment of the High Court of 3 November 2016 about the process that should be followed to enable the UK to leave the EU raises profound questions of constitutional significance for the United Kingdom.

At the centre of the case is the legal question of whether or not the government is entitled to trigger Article 50 of the Treaty on European Union (the exit provision under EU law) solely by the exercise of the Crown’s prerogative powers (meaning that this is purely an executive decision which can be made by the Prime Minister) or whether reference must be had to Parliament (the democratically elected, legislative body).

High Court judges wearing traditional red and white robes - photo courtesy of FruitMonkey (CC BY-SA 3.0)High Court judges wearing their traditional red and white robes. Photo © FruitMonkey (CC BY-SA 3.0)

The government, in suggesting that it could use the prerogative to put in motion the procedure contained in Article 50, relied on the suggestion that the conduct of international relations, including the making and unmaking of treaties (as is the case here), is a matter that falls within the Crown’s prerogative powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected.

The Unwritten Constitution

Putting politics to one side for a moment, which is exactly what independent judicial authority is required to do, the legal question is tricky to resolve because the United Kingdom, unlike most states, does not have a written Constitution.

We have an unwritten system of constitutional arrangements, conventions, doctrines, some parliamentary legislation (like the European Communities Act of 1972) and case law (decisions of the judges). We do not therefore have an easily accessible text which sets out the rules of the constitutional game. Instead we are left to follow principles derived from an array of sources which have amassed over time with varying degrees of force and authority.

Resolving the thorny legal question at the heart of this dispute is exactly what the three judges of the High Court had to do in their landmark decision of 3 November.

At the heart of the legal problem lies the question of the extent of the Crown’s powers under the royal prerogative. The prerogative, which is a key aspect of the UK’s unwritten constitutional arrangements, refers to those residuary (arbitrary) powers which continue to remain with the Crown (or executive) despite the sovereignty of Parliament (which was confirmed in statute by the 1689 Bill of Rights following the Glorious Revolution).

The Crown (i.e government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative.

The government argued that it could legitimately use the prerogative to give notice under Article 50 of its intention to begin the process of leaving the EU. This process would have the effect of taking away, or putting an end to, rights derived from EU law and incorporated into domestic UK law by the 1972 European Communities Act once the process was completed.

A photo of the High Court building in LondonThe Royal Courts of Justice in London, where the High Court judges made their ruling. Photo © sjiong (CC BY-SA 2.0)

What the judges of the High Court found, however, was that the government’s argument was not supported by the constitutional law of the UK.  The most fundamental rule of the UK’s constitution is the principle of parliamentary sovereignty or legislative supremacy. This means that Parliament is the supreme law-making body in the country and that it can make or unmake any law it chooses.

The Crown (ie government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative. That would be precisely the effect were the Crown to trigger Article 50 without reference to Parliament.

The completion of the Article 50 withdrawal process would result in the loss of rights for individuals. However, what Parliament has given (through the 1972 Act) can only be taken away by Parliament. It should escape no one that the desire of those supporting Brexit – that the UK parliament should have its sovereignty better respected – is precisely the outcome of the High Court’s decision.

Respect for the Rule of Law

Much of the media commentary surrounding the decision of the High Court has been about the lack of accountability of the judges in the face of the majority victory in the referendum for leaving the EU (51.9% against 48.1%).

Who are the judges to fly in the face of the wishes of the majority who voted for Brexit? The answer to this question is that the judges, far from being the ‘enemies of the people’ as the popular press would have us believe, are the independent authority whose task it is to uphold the rule of law in the midst of a political storm.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected. The judges are there to provide independent judicial review of executive action to ensure precisely that the executive/Crown/Prime Minister act within their powers and do not act unlawfully or against the wishes of a sovereign Parliament. The judges are the guarantors of individual rights and liberties and it is absolutely their role to defend the Constitution, to defend the rule of law, against the arbitrary and unaccountable use of executive power.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers and judicial review of executive action is exactly the legal tool required in order to ensure that the use of executive power is not arbitrary, unlawful or ultra vires. This is precisely the role of the judges and the purpose of a Constitution (written or otherwise) and for that we should all be thankful.

How curious then that the Lord Chancellor and justice secretary, Liz Truss, should be so underwhelming in her endorsement of the principle of judicial independence and so lacklustre in her defence of the judiciary in the face of hostile media attacks. The Bar Council of England and Wales has lost no time in pointing out the absence of leadership shown by the Lord Chancellor and has rightly expressed concern about the rule of law being undermined in the name of press freedom.

A photo of Liz Truss, current Home Secretary, standing at a podiumLord Chancellor and Justice Secretary Liz Truss was criticised for her lukewarm response to criticism of the judiciary following the ruling of 3 November. Photo © Policy Exchange (CC BY 2.0)

Not surprisingly, the government is appealing against the judgment of the High Court with a decision expected in December. This will enable the Justices of the Supreme Court (exceptionally all of them) to consider the strength of legal argument on both sides and a further, ironic, twist in the story could then be a preliminary reference to the EU’s Court of Justice in Luxembourg for its interpretation on the matter.

What is clear is that this profoundly important judgment of the High Court will resonate for years to come and that resonance comes not so much from the political consequences of the decision, but from its statement about the boundaries and the limits of executive power.

 

Professor Susan Millns is Head of the Department of Law in the School of Law, Politics and Sociology at the University of Sussex.

 

Brexit: the lawyer’s first 100 days

Erika Szyszczak
Erika Szyszczak

Reposted with permission from the UK Trade Policy Observatory

 

The “first 100 days” has become a standard by which to evaluate important political times. Undoubtedly, the momentous decision on 23 June 2016 to break up the current geopolitical space of Europe will be examined by historians as a decisive period of modern European history.

From a lawyer’s perspective the most striking feature of the last 100 days has been the legal uncertainty of how to implement the referendum result. This represents the challenge we love. So this blog post examines some of these uncertainties.

Dreams of a quick divorce

Dreams of a fast divorce from the EU have been thwarted by a lack of legal consensus on who may trigger the Article 50 TEU notification to leave the EU, and as to when is the optimal time to do it. The lack of a pre-nup gives much scope to the lawyer.

PM Theresa May is determined to retain a tight rein on this legal act, considering it within the powers of the executive. But this position is being challenged in the courts. For example, in the English High Court, several applications for judicial review have been given leave to proceed and the skeleton argument in the lead judicial review action has been published.

The thrust of the legal argument is that the correct UK constitutional requirement in order to trigger Art 50 is for parliamentary scrutiny and approval, alongside consultation with the devolved administrations in Scotland, Northern Ireland and the Welsh Assembly.

The legal issues framing the decision of when to trigger to Article 50 are also contentious.

Domestically, there is the need to reconcile the future internal relationship of the UK with Northern Ireland and Eire and also with Scotland and Wales.

The UK must also reconcile its future relationship with its largest trading partner: the EU. But there are other relationships to consider that are the offspring of the relationship with the EU. For example, there are third states linked (currently and in the future) in trade agreements with the EU, and the World Trade Organisation (WTO). It is a matter of legal conjecture as to what should be in the content of the withdrawal agreement with the EU under Art 50(2), and how far this agreement will set out the future legal relationship between the UK and the EU and other trade arrangements.

Living apart

How will the UK untangle 40 years of marriage? A first step will be to examine the existing EU law that has been transposed into domestic law. The UK has always fought hard to determine the final shape of EU law, and has had little difficulty in transposing EU law into domestic law using the ‘copy out’ procedure. One example of is the recent transposition of procurement law into UK law.

Lawyers must find a way to give effect to EU law that the UK wishes to retain in the future.

The repeal of section 2 of the European Communities Act 1972 is at the heart of the UK withdrawal process. Sect 2 gives effect to the supremacy and direct effect of EU law, and allows for EU Directives to be implemented quickly into domestic law by means of a Statutory Instrument (SI). Thus lawyers must find a way to give effect to EU law that the UK wishes to retain in the future, especially EU law which has been transposed using the SI procedure, as well as laws necessary to ease future trade deals.

Just because we’re divorced doesn’t mean we can’t be friends

Looking to the future relationship with the EU there are a number of existing legal trade frameworks developed by the EU with non-member states which could be bought off the shelf. The most immediate choices would be to take a look at the EEA Agreement, the Deep and Comprehensive Free Trade Agreement with Ukraine, the comprehensive economic and free trade agreement with Canada or the EU-Turkey customs union.

But PM Theresa May appears to want something more bespoke for the UK. High on the shopping list of UK desires is access to the Single Market without the concomitant demands of membership of the Single Market; in particular, special rules on the free movement of persons and not having to contribute to the finance of the EU. Here there is little scope for mediation: the EU has made it clear that there is no Single Market a la carte.

Access to the Single Market would only ease trade in a limited way. The UK would not participate in the rule-making for the Single Market and also would not be able to stop the influence of the European Court of Justice (CJEU) on the interpretation of the Single Market rules, in particular the definition of no-tariff barriers to trade, the scope of mutual recognition and the host of legislative lacunae filled by the CJEU in its day-to-day work.

The legal limits on finding future trading partners

The indications are that the UK seeks future trading partners in a similar bespoke fashion, spurning the tendency for large multi-party deals.

Dr Liam Fox, the international trade secretary, has indicated to the press that exploratory talks with non-EU states such as India have already taken place.

Liam FoxDr Liam Fox, International Trade Secretary, has said he is already in talks with India over a trade deal.
Photo © Chatham House.

This is tricky from a legal perspective.

The UK is tied to the rules of membership of the EU; it cannot negotiate any new deals until after Brexit has occurred. EU trade policy is within the exclusive competence of the EU. Even in policy areas where the EU has shared competence with the member states, the UK would still be limited in its actions by Article 4(3) TEU, the duty of fidelity. So, for example, the UK may not depart from a position agreed by the EU in international negotiations. Even where mixed agreements are found the European Commission takes the lead negotiating position for the EU and the member states.

There are press reports that legal advice given to Dr Liam Fox suggests that “there is a high risk” of the European Commission starting infraction proceedings against the UK if such talks went ahead, with the UK being landed with a “big fine”.

This is sensationalist reporting. Any infringement proceedings brought by the European Commission under Article 258 TFEU are not automatically brought before the CJEU. There is a long period of negotiation. Only when talks break down will the European Commission go to court. This takes several years. If the CJEU finds a member state in violation of EU law, a member state is under a duty to comply with the judgment of the Court. It is only when a member state does not comply that financial sanctions come into play under Article 260 (2) and (3) TFEU. Fines do not automatically flow from a breach of EU law: the European Commission must bring a second action against the member state.

Brexit means Brexit: but what does it mean?

Law and lawyers will have a central role to play in easing the UK divorce from the EU and drawing up the divorce settlement. PM Theresa May has not acted hastily or given away details on what the UK negotiating stance will be, or when it will start with earnest. But she cannot delay for long. The next 100 days will bring more certainty to many of the legal issues churned up in the aftermath of 23 June 2016.

Erika Szyszczak is Professor of Law in the School of Law, Politics and Sociology at the University of Sussex, and a member of the University’s UK Trade Policy Observatory