Web of Brexit legal, constitutional questions faces Supreme Court scrutiny

31 January 2017 9:54am
Spider's Web

2 December 2016. By Matthew Holehouse.

The UK government will go before the Supreme Court next week to appeal a ruling that found it must seek the permission of lawmakers to begin the Brexit process.

The outcome of the case is unlikely to alter the UK’s current trajectory out of the EU.

If the court confirms that parliamentary agreement is required, the government of Prime Minister Theresa May is highly likely to find support among lawmakers for a bill authorizing Brexit talks.

The judges are likely to issue a narrow answer to the question at hand — whether the government can use its prerogative powers to activate Article 50, the exit clause of the EU treaty.

But a series of overlapping interventions in the case reveal a web of significant constitutional and legal grievances questions from Brexit. Many will go unresolved when judges rule in January.

The High Court case

The challenge was brought to the High Court by Gina Miller, a hedge-fund manager, and Deir Tozetti Dos Santos, a hairdresser.

They argued that notification of Article 50 would automatically result in the extinction of their legal rights derived from EU membership. Under the UK constitution, only Parliament can alter domestic law, they said.

The UK government agreed that the case was justiciable by the courts. It also agreed that Article 50, once triggered, is irreversible, and that it would result in domestic law being changed.

In its ruling on Nov. 3, the High Court found in favor of the claimants.

“As an aspect of sovereignty of Parliament, it has been established for hundreds of years that the Crown, i.e. the government of the day, cannot by exercise of prerogative powers override legislation enacted by Parliament,” the court said in a summary of its ruling.

The government was granted permission to appeal to the Supreme Court.

The UK government’s submission

The Supreme Court will sit as 11 judges for the first time since its formation in 2009. The case will be heard on Dec. 5 to 8, with a ruling expected in January.

The UK government will be represented by Jeremy Wright QC, the Attorney General; Lord Keen QC, the Advocate General for Scotland; and James Eadie QC.

In the appeal, David Davis, the UK’s Brexit secretary, argues that the UK’s “dualist” constitution says that foreign policy is conducted through prerogative powers.

“The government has always had the prerogative power to make, amend and withdraw from treaties,” Davis argues. “That is an essential part of the effective conduct of foreign affairs and an integral part of the modern UK constitution.”

The government argues that in successive legislation on the EU, including in the 2015 referendum bill, Parliament didn’t curtail the government’s prerogative power on Article 50, either explicitly or implicitly.

It also argues that the binding nature of the referendum was “clearly stated on many occasions,” including in a leaflet sent to UK houses before the vote.

The “surprising consequence” of the High Court verdict is that “if the UK is to withdraw from the EU, Parliament must be asked to answer precisely the same question that was put by Parliament to the electorate and has been answered in the referendum, and must give the same answer in legislative form.”

Parliamentary sovereignty

Miller, the first respondent who is represented by barrister Lord Pannick, says the UK government’s distinction between its prerogative powers over foreign policy and the role of Parliament to make domestic law is flawed.

Miller argues that the 1972 European Communities Act, which gives EU laws power in the UK legal system, was of “exceptional nature.”

As well as governing relations between states, it confers a series of international law rights on individuals, and gives them effect in national law.

In passing the 1972 Act, “Parliament did not intend that the rights it has created could be defeated or frustrated by the actions of a Minister purporting to exercise prerogative powers,” Miller argues.

Dos Santos, the second respondent who is represented by barrister Dominic Chambers, stresses the “absolute” principle of sovereignty of parliament dating back to the Glorious Revolution of 1688.

The government’s claim that it has the “unqualified and general” power to make and unmake treaties is wrong, Dos Santos argues.

“The issue is whether this proposed executive action will override, set aside or nullify primary legislation without parliamentary authority,” he says. “If it does, as in the present case, that is the end of the matter and the proposed executive action in question is unlawful.”

The Pigney Respondents are six individuals who were recognized as interested parties by the High Court, following a crowd-funded appeal to cover legal fees. They will be represented by barrister Helen Mountfield.

The respondents have submitted a “historical inquiry” into whether the government has ever possessed a prerogative power to change domestic law while conducting foreign relations.

They argue that a body of case law from 1688 onwards shows “no precedent for the claim that there is a foreign-relations prerogative power for a minister to dispense with primary legislation.”

Exiting the EU treaties, without the approval of parliament, will “expand the scope of the foreign-relations prerogative beyond its historically recognized boundaries,” the group says.

Types of rights

Miller, the first respondent, says as a result of Brexit she will inevitably lose the right to seek a ruling from the EU Court of Justice; to ask the European Commission to take action against anti-competitive practices; to participate in EU Parliament elections; and to rely on EU laws such as equal pay without sex discrimination.

Other participants will highlight different types of rights that are at risk. In doing so, the case will give a foretaste of future legal challenges that are likely to be generated by Brexit.

The AB Parties were also recognized as interested parties by the High Court. They are represented by barrister Manjit Gill.

Their submission argues that their legal residence in the UK is granted by European law.

The AB Parties comprise nationals of the European Economic Area, their children and their family members from outside the EEA who have the right to reside in the UK because of EU treaties.

The group also includes British children and disabled people. Their caretakers are non-EU nationals known as “Zambrano carers,” whose right to reside in the UK in order to look after their dependents is underpinned by EU case law.

The AB Parties submit that the Article 50 process will strip them of their right to stay in the UK, and the government has put in place no measures to guarantee their stay. As such, they will be potentially liable to prosecution under the 1971 Immigration Act.

The group argues that under the UK constitution, the executive has no legal power “to create a new criminal offence or to expose . . . a class of persons to liability for an existing offence at an ascertainable future point in time.” Only Parliament can do that.

George Birnie and others, a group known as the “Expat Interveners” represented by Patrick Green QC, are UK citizens living elsewhere in the EU.

Brexit “will touch upon almost every aspect of their lives,” their submission argues.

These include the EU-derived right to seek employment and to access education, welfare and medical treatment in the bloc.

Article 50 says nothing about whether those rights are preserved after the EU treaties cease to apply on the UK, and there is “no general principle of EU law specifically protecting acquired rights of individuals,” the submission says. As a result, the “effect of notification under Article 50 will be to extinguish those rights.”

The Independent Workers Union of Great Britain, a small trade union representing cleaners and security guards, has been given permission to intervene.

The union highlights two types of rights that will be at risk through the Brexit process. These are EU citizens’ equal access to work in the UK; and the rights afforded to trade union members through EU law.

Even if EU workers’ rights are replicated after Brexit, they will no longer trump domestic law or be subject to interpretation by the EU Court of Justice, the union argues.

Furthermore, the European Convention on Human Rights dictates that any changes to trade union legislation must comply with the rule of law, which the union argues precludes using executive powers.

Devolved administrations

The devolved administrations of Scotland and Wales have also been granted permission to intervene by the Supreme Court.

Article 50 stipulates that notification must be in accordance with a member states’ constitutional order.

Scotland’s Lord Advocate, W. James Wolffe, will argue that Brexit will change the powers of the Scottish Parliament and devolved government, and change a raft of laws that apply in Scotland.

Since the Act of Union of 1707, the UK executive has been unable to change Scottish law without the consent of the UK Parliament, the submission argues.

Furthermore, under the devolved settlement agreed in 1998 and revised in 2015, the Scottish Parliament must normally give its assent before the UK Parliament can change Scottish law under what is known as the Sewel Convention. As such, a Legislative Consent Motion must be passed by Scottish lawmakers before Article 50 can be triggered.

The government of Wales, represented by barrister Richard Gordon, will make a similar argument — that Brexit will change the competences of the Welsh Assembly and Welsh Government, a process that requires both legislation in both the UK and Welsh legislatures.

The UK government, in its response, dismisses these arguments. It says that the devolution settlement with Scotland and Wales “expressly does not give competence” to those administrations over the conduct of foreign affairs. “The prerogative power to withdraw from treaties is deliberately unaffected”.

It says the Sewel Convention is “not legally enforceable” and it is for lawmakers, not the court, to determine whether it comes into play.

Scotland’s nationalist administration has said that Brexit, dependent on the settlement secured with Brussels, could be grounds for a second referendum on independence.

The UK government argues that the two administrations want the court to meddle in politics.

“The court should resist that invitation, particularly when the underlying issue is one of considerable political sensitivity,” it says.

Northern Irish authorities have referred two challenges, brought by Raymond McCord and Agnew and others, to the Supreme Court.

Agnew and others contend that the Northern Irish devolution settlement requires the consent of the devolved assembly and the UK parliament before the Brexit process can begin. McCord argues that under the peace process in the province, changes to the Northern Irish constitution require the consent of its people.

Northern Ireland will also be represented by barrister John Larkin, Attorney General for Northern Ireland. Larkin argues that there is nothing in Northern Irish law that requires the UK Parliament or the province’s assembly to consent to the Brexit process.

Path ahead unclear

The High Court made clear that Parliament must have a role, but it didn’t specify precisely how.

This may change at the Supreme Court. In a recent speech, Supreme Court Judge Brenda Hale said it was “not so clear” what measures are needed.

It may be that a “simple Act of Parliament” is sufficient. But a “comprehensive replacement” of the 1972 European Communities Act may be required, a far lengthier process.

Brexit Special Report