Is it rational to trigger Article 50?

EU WITHDRAWAL AND PRIME MINISTER’S REASONS

 

The present Government proposes that the United Kingdom withdraw from the European Union following a referendum on the issue in June 2016. A Bill giving the decision on triggering the process to withdraw to the Prime Minister is going swiftly through Parliament. This article considers how a Prime Minister must exercise her judgment in taking that decision, by considering the following questions:

 

  • Discretion and reason – What is discretion and exercise of judgement; and how is it affected by operation of the rationality of the decision-maker (ie the Prime Minister in this case)?
  • Referendum result – How does reason apply to the referendum result; and how far was the result ‘advisory’?
  • Rights and EU withdrawal – How does the treatment of rights in EU withdrawal apply to an exercise of reason?

 

The EU withdrawal issue has been twice before the courts in recent months: before the Divisional Court in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html) and the Supreme Court as R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 (http://www.bailii.org/uk/cases/UKSC/2017/5.html). They will be referred to as Miller 1 and Miller 2 respectively.

 

These cases resolved only whether the Government must have Parliament’s permission – that is, an Act of Parliament – for the Prime Minister to trigger the process for UK’s coming out of the EU and by activating Treaty of European Union 1992 Article 50. At the time of writing there is a Bill before Parliament (set out below) which will do what the two courts said the Government must do.

 

This article concerns only the narrow point of what should operate on the mind of the Prime Minister when she considers the rationality of whether or not to trigger Art 50. In particular it will look at this in the light of two points: (1) the advisory nature of the referendum and (2) the rights of UK nationals and EU members engaged.

 

 

DISCRETION, JUDGEMENT AND REASON

 

Exercise of discretion

 

Any Minister to whose job is to exercise a discretion, or judgment in the making of a decision, must exercise it rationally. If judgment is exercised by a Government minister it must be exercised wisely and according to the law. It must be exercised according to reason, and not in an arbitrary way. Administrative Law (2014) Wade & Forsyth (11th Ed), often quoted by

 

A minister’s reasoning depends on appropriate information being provided to him/her. If appropriate information is provided and understood the minister has a firm foundation for making a decision. If there is a choice of courses, the minister decides by exercise of discretion. That exercise of discretion is governed by the same legal principles in 2017 as over 400 years ago in Rookes Case. In that case in 1598 the report, by Edward Coke, later Sir Edward Coke, said of the exercise of discretion of commissioners of sewers:

 

That they should do according to their discretions, yet their proceedings ought to be limited and bounded within the Rules of Law and Reason; for that discretion is a Science to discern betwixt falsity and truth, between right and wrong, between shadows and substance, betwixt equity and colourable glosses, and the Commissioners ought not to follow their wills and private affections;

 

The rationality of any exercise of discretion can always be brought into question. Statutory power is, in a sense, vested in a minister on trust for the governed as a whole. Therefore ‘unfettered governmental discretion is a contradiction in terms’ (Administrative Law (above) at p 295). The modern statement of the law on this is Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924 where a majority (four to one) in the House of Lords refused to permit a government minister to act in a way which, they said, was no in accordance with the Act of Parliament under which he proceeded (in that case with complaints from farmers about a Milk Marketing Board pricing scheme).

 

Lord Reid explained his view of the law after first saying that, it seemed to him, that the minister was trying to argue that there could only be ‘two possible interpretations of this provision either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case.’ Lord Reid refused to accept this argument by the Minister:

 

I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.

 

Prime Minister’s discretion

 

That is, according to Padfield, it is necessary to find out first what a relevant Act intends. The problem with the European Union (Notification of Withdrawal) Bill – and it is still a Bill – is that it does not say what it intends beyond giving authority ‘to notify’ the UK’s intention to leave the EU. Clause 1(1) says, under the heading ‘1 Power to notify withdrawal from the EU’:

 

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

 

And therein lies the discretion: the Prime Minister ‘may notify’. She has to decide. In so doing she must act rationally. Underlying that rationality question it is critical for her to be clear – and preferably to say that she is clear – what is meant by the 2016 referendum. Secondly, she needs to understand as fully as possible what will be changed adversely to those she represents – the UK nationals affected in the variety of ways involved – as a result of triggering Article.

 

The first of these points – the advisory nature of the referendum – has been explained to her, or for her, by the High Court and Supreme Court. The second could not have informed the electorate’s mind when they voted in the referendum – as she well knows. She knows this because neither she nor the army of civil servants working on the question have begun to give her an informed view of it all – eg by presenting or publishing a draft ‘Great Reform Bill’.

 

So that takes us back to Coke and what is meant by the discretion she has been given by s 1(1) and how she exercises it.

 

 

THE REFERENDUM

 

Meaning of the 2016 referendum

 

The referendum issue can be approached in this way. In December 2015, the UK Parliament passed the European Union Referendum Act 2015. The ensuing referendum on 23 June 2016 produced a majority of those who voted, favour of leaving the European Union. UK government ministers then announced that they would bring UK membership of the European Union to an end.

 

The effect of any referendum said the Supreme Court in Miller 2 depends on the following:

 

[118] … the terms of the statute which authorises it. Further, legislation authorising a referendum more often than not has provided for the consequences on the result. Thus, the authorising statute may enact a change in the law subject to the proviso that it is not to come into effect unless approved by a majority in the referendum

 

The 2015 Act did not state what the outcome of the referendum was to mean. It left what was to happen next open. No provision was made in the Act for the consequences of the referendum. The earlier 1975 referendum was described by ministers as advisory, whereas the 2016 referendum was described as advisory by some ministers and as decisive by others. So how had ministers seen the question of outcome of the referendum, asked the Supreme Court:

 

[125] It is instructive to see how the issue was addressed in ministers’ response to the 12th Report of Session 2009-10 of the House of Lords Select Committee on the Constitution (Referendums in the United Kingdom). The Committee included the following recommendation in para 197:

“[B]ecause of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion.”

The UK government’s response as recorded in the Committee’s Fourth Report of Session 2010-11 was

“The Government agrees with this recommendation. Under the UK’s constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result.”

 

The courts and the referendum: ‘advisory’ said the High Court

 

So in 2010 ministers were told the referendum ‘cannot be legally binding’, and are therefore ‘advisory’; and in 2011 ‘Parliament must be responsible’ for any decision. In the Divisional Court in Miller 1 the judges drew attention to the parliamentary briefing paper No 7212 Pt 5.

 

[107] Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.

 

The ‘briefing paper’ referred to in §107 is set out in Annex 1 to this article. The passage which is likely to have been in members’ minds when they voted for the 2015 Act, and should be in Mrs May’s mind now, is in Pt 5 as follows:

 

[The Referendum Bill (as it was then)] does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.

 

The Supreme Court decision in Miller 2 was, in the end, expressed by the majority as simply as:

 

[124] Thus, the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.

 

 

RIGHTS AND EU WITHDRAWAL

 

EU rights lost by withdrawal: the judge’s view

 

If new legislation is planned the Government department publishes a green paper for discussion of a subject and for it to receive views. A white paper can then follow to set out Government policy and is likely to be followed by a bill setting out proposed new law. Here there has been a four line bill (awaiting its third reading as I write). There has been no green paper; and a white paper emerged from the Government whilst the bill was going through Parliament.

 

So what is the Government’s understanding of rights which may be lost – to EU nationals in the UK, and to UK nationals in the EU – by EU withdrawal? This should perhaps be uppermost in a reasonable Prime Minister’s mind if she considers the triggering of Art 50?

 

In Miller 1 the Divisional Court explained that under European Communities Act 1972 s 2(1) rights had been incorporated into – ‘given legal effect’ under – UK law (§§[57]-[66]). The court identified three categories of rights under ECA 1972 and EU law (a categorisation accepted by the Supreme Court: see Miller 2 at §69) which would be affected or lost as a result of EU withdrawal:

 

  • Rights capable of being reproduced in UK law;
  • Rights derived by UK citizens from EU law in other member states;
  • Rights of participation in EU institutions that could not be replicated in UK law.

 

The Supreme Court explained that, in general terms (at §69) ‘our domestic law will change as a result of the United Kingdom ceasing to be party to [the EU treaties], and rights enjoyed by UK residents granted through EU law will be affected’. The Supreme Court went on, at §§70-72 to give examples of these rights. For example in category (1), a lengthy paragraph included:

 

[70] … They include, for instance, the rights of UK citizens to the benefit of employment protection such as the Working Time Directive, to equal treatment and to the protection of EU competition law, and the right of non-residents to the benefit of the “four freedoms” (free movement of people, goods and capital, and freedom to provide services)….

 

The Divisional Court explained the consequences for these rights as follows:

 

[64] As to category (1) rights, we consider that the claimants are correct in their submission that it is the ECA 1972 which is the principal legislation under which these rights are given effect in domestic law of the United Kingdom: and that it is no answer [by the Government] to their case to say that some of them might be preserved under new primary legislation, yet to be enacted, when withdrawal pursuant to Article 50 takes place. The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 of effect….

 

What the Divisional Court said of category (2) rights included the following (italics added):

 

[65] … The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other Member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (2) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972. Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament.

 

The Prime Minister on rights

 

So what does the Prime Minister, who is to sign off Art 50(2), think of all this? We have her 17 January 2017 speech and the White Paper to test this. What do these say on the subjects? This and the white paper is the only real test, so far, of her reasoning on the subject. Her speech of 17 January said that

 

… we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain. Leaving the European Union will mean that our laws will be made in Westminster, Edinburgh, Cardiff and Belfast. And those laws will be interpreted by judges not in Luxembourg but in courts across this country.

 

So what laws did she have in mind, bearing in mind what the judges had said on the subject:

 

We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can. I have told other EU leaders that we could give people the certainty they want straight away, and reach such a deal now.

 

Mrs May suggests surprise in her speech that not all EU members will agree; and if they will not where does that leave category (2) rights? Is that of concern to her? She does not say. It is a matter which, it could be argued, should act on her mind before she triggers Art 50.

 

She then dealt with protection of ‘workers’ rights’. ‘A fairer Britain’ is a country ‘that protects and enhances the rights people have at work…. we will ensure that workers’ rights are fully protected and maintained.’ She did not distinguish between rights of workers in the UK, and of UK nationals in EU countries.

 

EU withdrawal White Paper: treatment of rights

 

The Government’s White Paper, ‘The United Kingdom’s exit from and new partnership with the European Union’, February 2017 (Cm 9417) (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf) put a little flesh on the bones of Mrs May’s 17 January speech. (It is that White paper which included – with only one verb, ‘’s’, in the quoted paragraph (on page 3) – the remarkable: ‘And another thing that’s important. The essential ingredient of our success. The strength and support of 65 million people willing us to make it happen.)

 

The contents page of the White Paper is set out at the end of this article (Annex 2). It says the White paper deals with rights in two contexts only:

 

  • Securing rights for EU nationals in the UK, and UK nationals in the EU
  • Protecting workers’ rights

 

The White Paper does not attempt to list these rights nor to deal with them in the way that the two judgments do. Still less does the White Paper produce the Government’s promised – or is it? – Great Repeal Bill. Securing rights for EU nationals, and for UK nationals in the EU is dealt with in two page; and one of those pages is mostly graphs. The second page includes:

 

6.3 Securing the status of, and providing certainty to, EU nationals already in the UK and to UK nationals in the EU is one of this Government’s early priorities for the forthcoming negotiations…

6.4 The Government would have liked to resolve this issue ahead of the formal negotiations. And although many EU Member States favour such an agreement, this has not proven possible. The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity. It is the right and fair thing to do.

 

These two paragraphs – on which the rights for the future a number of people depend – represents no substance: not what rights are engaged and how they will be dealt with, for example. As far as it goes – and that is not very far – it is little more than hope and a little recrimination. There is not reflection that if things like this had been considered with EU partners (as they still are) before a decision to leave, they might have been a little keener to help. Mrs May seems a remarkably naive negotiator, but perhaps that goes with bossiness.

 

‘Workers’ rights’ get even less: one page, two paragraphs and no graphs. And that is it on the rights sections. Compare the White Paper with the efforts to provide information in the two court judgements and that put into production of a White Paper which should have been in gestation since June last year, and you realise how this country is served by its judges as against by its government.

 

 

CONCLUSION: REASON IN EXERCISE OF DISCRETION

 

How to define the nut; defining the rights lost

 

In the case of R (Quila & anor) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, [2012] 1 FLR 788 (http://www.bailii.org/uk/cases/UKSC/2011/45.html) the Supreme Court were concerned with a Home Office regulation which – to help to combat forced marriages, it was said – raised the age for immigration to the UK for marriage to 21. Such evidence as there was suggested that many more unforced marriages would be impeded than forced marriages prevented. Had the Secretary of State (Mrs May, as it happens) acted rationally in deciding to agree to the regulation?

 

No said Lord Wilson (with whom three of the other four Supreme Court Justices agreed). She had identified a nut, but failed to identify the size of the nut to which she was taking a sledge-hammer:

 

[58] … The number of forced marriages which [the regulation] deters is highly debatable. What seems clear is that the number of unforced marriages which it obstructs from their intended development for up to three years vastly exceeds the number of forced marriages which it deters. Neither in the material which she published prior to the introduction of the amendment in 2008 nor in her evidence in these proceedings has the Secretary of State addressed this imbalance – still less sought to identify the scale of it. Even had it been correct to say that the scale of the imbalance was a matter of judgement for the Secretary of State rather than for the courts, it is not a judgement which, on the evidence before the court, she has ever made…. On any view it is a sledge-hammer but she has not attempted to indentify the size of the nut.

 

Leaving the EU is the sledge-hammer which the referendum has advised Mrs May – no more than advised – to wield. One aspect of the nut – the problems which, it is thought, EU withdrawal would solve and the advantages it create – can no doubt be guessed at by any number of Brexit enthusiasts. But – the other aspect of the nut – a reasonable person must weigh all matters in the balance.

 

Rights of UK nationals and EU members to be lost

 

The factors the Prime Minister must put in the balance – and which she might have to explain to a High Court judge (the equivalent of the number of unforced marriages in the Quila case) – have not been explained by her to us. The White Paper does not do it. Amongst these factors, it might be thought by her, are the loss or disruption of many rights which go for EU members in the UK and UK nationals in the EU; workers’ rights; rights on family breakdown and for children if parties live in UK and EU respectively. Many more such rights have yet to be clarified and their future enacted into draft legislation. (Had they been defined by a Government department it is most likely we would have a draft ‘Great Reform Bill’ by now.)

 

It is the Prime Minister’s decision if the Bill is passed. She does not have to say how she reaches her decision, but the less she says the more she may have to explain later. Within the range of the two areas covered in this article – the size of the rights ‘nut’ and an understanding that the referendum was ‘advisory’ of MPs only – it can be said of the Prime Minister’s decision that two conclusions follow.

 

First, for the Prime Minister to proceed on the basis that she must withdraw UK from the EU because it is the ‘will of the people’ is wrong. Constitutional principle (supported by the 7212 briefing paper (Annex 1 below) and the Divisional Court and Supreme Court) is that it is a decision for her and MPs. This decision of MPs takes into account, only, the referendum outcome. Secondly, without setting out fully and clearly what rights will be lost and with what consequences she expects for those affected the Prime Minister cannot rationally exercise her discretion to trigger Art 50.

 

The combination of both grounds makes any decision at this stage open to a challenge that it has been arrived at irrationally; and if challenged successfully, that it could be declared void by the High Court.

 

David Burrows

8 February 2017

© David Burrows, Paris 2017

 

 

ANNEX 1

 

Extract from Briefing Paper

 

  1. Types of referendum This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions. The referendums held in Scotland, Wales and Northern Ireland in 1997 and 1998 are examples of this type, where opinion was tested before legislation was introduced. The UK does not have constitutional provisions which would require the results of a referendum to be implemented, unlike, for example, the Republic of Ireland, where the circumstances in which a binding referendum should be held are set out in its constitution. In contrast, the legislation which provided for the referendum held on AV in May 2011 would have implemented the new system of voting without further legislation, provided that the boundary changes also provided for in the Parliamentary Voting System and Constituency Act 2011 were also implemented. In the event, there was a substantial majority against any change. The 1975 referendum was held after the re-negotiated terms of the UK’s EC membership had been agreed by all EC Member States and the terms set out in a command paper and agreed by both Houses.64

 

 

ANNEX 2

 

Contents page of White Paper

 

  1. Providing certainty and clarity – We will provide certainty wherever we can as we approach the negotiations.
  2. Taking control of our own laws – We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK.
  3. Strengthening the Union – We will secure a deal that works for the entire UK – for Scotland, Wales, Northern Ireland and all parts of England. We remain fully committed to the Belfast Agreement and its successors.
  4. Protecting our strong and historic ties with Ireland and maintaining the Common Travel Area – We will work to deliver a practical solution that allows for the maintenance of the Common Travel Area, whilst protecting the integrity of our immigration system and which protects our strong ties with Ireland.
  5. Controlling immigration – We will have control over the number of EU nationals coming to the UK.
  6. Securing rights for EU nationals in the UK, and UK nationals in the EU – We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can.
  7. Protecting workers’ rights – We will protect and enhance existing workers’ rights. 8. Ensuring free trade with European markets – We will forge a new strategic partnership with the EU, including a wide reaching, bold and ambitious free trade agreement, and will seek a mutually beneficial new customs agreement with the EU.
  8. Securing new trade agreements with other countries – We will forge ambitious free trade relationships across the world. 10. Ensuring the UK remains the best place for science and innovation – We will remain at the vanguard of science and innovation and will seek continued close collaboration with our European partners.
  9. Cooperating in the fight against crime and terrorism – We will continue to work with the EU to preserve European security, to fight terrorism, and to uphold justice across Europe.
  10. Delivering a smooth, orderly exit from the EU – We will seek a phased process of implementation, in which both the UK and the EU institutions and the remaining EU Member States prepare for the new arrangements that will exist between us.

 

Our rights: the Miller Brexit case explained

What follows is a layperson friendly version of my earlier note at https://dbfamilylaw.wordpress.com/2016/11/05/rights-and-the-miller-brexit-case/

 

On 3 November 2016 the High Court (in this case, three senior judges: the Lord Chief Justice Lord Thomas, the Master of the Rolls Sir Thomas Etherington and Lord Justice Sales) handed down their judgment in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (‘Miller’; http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html). For me the central question is: what are the court’s views on the question of a UK citizen’s rights (ie not only rights under Human Rights Act 1998); and how should Parliament deal with them?

 

The case concerned whether the Government – the ‘executive’ – could decide on its own to trigger leaving the European Union (Art 50); or whether the UK constitution requires that Parliament is consulted on the process; and that it considers the options and makes the decision as to triggering Art 50.

 

In what follows the terms ‘executive’, ‘government’, ‘Crown’ and ‘Secretary of State’ are used interchangeably and mean the same thing. They are the executive and exercise ‘prerogative’ power. They are to be contrasted (so far as possible under the UK constitution) from Parliament (ie the legislature) under the theory of separation of powers.

 

It is clear that, from the start, Parliament proceeded on the assumption that it could only be advised by a referendum, not bound by its result; and MPs had a House of Commons briefing paper to this effect before they voted. Nothing in the judgment affects the fact that a UK referendum has said that a majority of those who voted want to leave the EU. It is a question of the legislation to achieve this which the case was all about.

 

In English law rights are mostly defined by our common law – that is judge-made law; or they are created or restricted by statute. Thus what might once have been a right – for example, to carry a gun or to drive a car at whatever speed the driver chooses – are banned, restricted or regulated by Act of Parliament.

 

The question the court dealt with in the Miller case was: who defines the extent to which rights can be restricted, changed or withdrawn? Is it the Government (Crown prerogative, ie the executive); or is it Parliament (ie the legislature)? The examples given were two actual cases: a hotel which was requisitioned by the Army in the First World War; and a scheme for compensation of victims of crime. In both cases statute law said that the hotel could claim compensation, where the Army (ie the Government) said it need not pay; and that the victim could claim more than the Government department allowed, when setting up a later scheme.

 

Of both of these cases the courts said: if Parliament had said the claimant was entitled to more it was not for the Government by its unilateral dictat to say less. If something different was to be setup than what the original law allowed for, only Parliament could say so. The hotel and the victims both were entitled to compensation as Parliament intended.

 

Applied to EU withdrawal (‘Brexit’) these legal principles mean that if rights are to be withdrawn then only the legislature (Parliament) can do it. It cannot legally be done by the executive (the Government) alone under any prerogative powers. What is more, if Parliament is to withdraw rights effectively, it must be done in clear and specific terms by Act of Parliament. It is only fair that we should know our rights. And even more is this so if our rights are to be taken away.

 

So how does all this affect the Miller claimants? It affects them because, as a result of UK joining the EU in 1973 (under European Communities Act 1972 (ECA 1972)) various rights were, said the judges, created by Parliament. These rights depended upon UK being part of Europe. The rights include:

 

  • (i) Rights which are ‘capable of replication’ in English law. If Parliament choses it can redefine or recreate these rights. As yet it has no clear plans to do so, beyond reference by the Government barristers to a ‘Great Repeal Bill’. The judges were sceptical on this point. The rights which could be lost include UK workers’ rights in the EU and benefits and health rights of UK nationals living elsewhere in the EU.

 

  • (ii) The rights of UK citizens and companies in relation to their activities in other EU countries.

 

  • (iii) Rights which have an effect in UK domestic law, but which would be lost on withdrawal from EU. These rights include, said the court, the right to seek a reference to the Court of Justice of the European Union and to seek to persuade the EU Commission to take regulatory action over environmental protection legislation occurring within UK and grant a remedy in relation to it.

 

  • (iv) The judges also stressed that ‘it is important to bear in mind that there are other substantial areas of EU law such as the schemes of regulation which take effect as part of the law of the United Kingdom’ which – for good or ill – will be lost. For example, in my area of law, the conformity provided for children law and maintenance enforcement will be lost to UK nationals, and this will be to their additional expense and disadvantage.

 

In all these cases – especially (i) – domestic law rights created by ECA 1972 will be lost. Category (ii) rights depend on membership of the EU so cannot be recreated by Parliament without reciprocal agreement from member states.

 

So what power rests with the Government – prerogative rights – to alter an individual’s domestic law rights? There is no power to alter the law, save where Parliament says so by clearly expressed statute. This, as the court stressed, is the constitutional principle argued for by Parliamentarians against the king in the 17th century; and it was resolved in Parliament’s favour – in favour of democracy – by the Glorious Revolution settlement in 1688. The principle enabled Tom Paine in 1776 to assert that the law was king, not the king law. And it was these principles which underlay the resolution of the claims for the hotel and the criminal injuries claimants.

 

So what did Parliament intend when it passed the original ECA 1972? Can Parliament then be taken to have left everything to the Government? No said the court. It is especially unlikely that Parliament ‘intended to leave [changes in domestic law] in the hands of the Crown through the exercise of its prerogative powers’ (ie to the Government unchecked by Parliament). Parliament had ‘taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972’, the judges refused to believe that Parliament ‘intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again’.

 

Any change to the law and to regulation of UK citizen’s rights should only by Parliamentary approval. Triggering Art 50 notice to leave the EU would, as night follows day, affect personal and commercial rights. That could not be provided for by Government action alone.  Certain rights were created for UK citizens by Parliament by ECA 1972. If they are to be removed, this must be done by Parliament and not by the Government (executive, Crown etc). That is the way English law operates. And it has done so since the 17th century.

 

The judges’ decision does not mean UK will not leave the EU; but if their decision remains after any appeal to the Supreme Court, the result is that the referendum was only the first step in that direction. Parliament – not the vague answers of the referendum or the dictat of Mrs May or her Government – must control the next steps as our law has required, at least since the late 17th century.

Rights and the Miller Brexit case

Parliament or the prerogative?

 

Much has been written of the Divisional Court decision in the Brexit case on 3 November 2016; and much more will be written, no doubt, before and after any Supreme Court appeal. The judgment was of the court (ie a combined effort of all judges, consisting of Lord Thomas LCJ, Sir Terence Etherington MR and Sales LJ) in the case of R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (‘Miller’; http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html). I want to enter the debate only to ask what the court’s views are on the question of a UK citizen’s rights in all this; and by this I mean not just rights under Human Rights Act 1998 but the much wider range guaranteed by laws which derive from European legislation and law-making (see Categories of rights considered at §§57-66 and below). The question of rights, it seems to me, is the central question in the debate about Miller.

 

But first some preliminary points: in what follows the terms ‘executive’, ‘government’ and ‘Crown’ or ‘King’, ‘King in Council’ (Queen doesn’t crop up) ‘Secretary of State’ are used interchangeably and mean the same thing. They exercise ‘prerogative’ power and are to be contrasted (so far as possible under the UK constitution) from Parliament or the legislature.

 

Next: nothing in what follows, or which derives from the judgment affects the fact that a United Kingdom referendum has said that a majority of those who voted want to leave the EU. It is a question of the legislative mechanism by which this is to be achieved with which Miller was concerned.

 

‘Express language’ to override statute

 

Finally, a thread which must run through this note where legislation over rights is concerned, is the House of Lords (now Supreme Court) case of R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33, [2000] 2 AC 115 – which is referred to in passing by the Divisional Court at §83. There the House found that an indiscriminate ban on a prisoner’s contact with journalists ultra vires (outside the powers of) the Secretary of State under the existing primary legislation. In a short speech Lord Hoffman made three points. First on ‘sovereignty of Parliament’ he said:

 

I add only a few words of my own about the importance of the principle of legality in a constitution which, like ours, acknowledges the sovereignty of Parliament. Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.

 

Secondly, he explained the effects of legality on law-making; and he makes the same point in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563, [2002] 2 WLR 1299: that if Parliament is to interfere with fundamental rights it must do so in clear terms, that is ‘express language’:

 

…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

 

Thirdly he emphasises that this principle applies equally to subordinate, as to primary, legislation: it might be said, even more so.

 

Categories of rights

 

The Divisional Court categorises the rights which they see as relevant to the case at §§57-66. They do so in three listed categories; and also by reference to a fourth important bundle referred to as (iv) below. And, it must be recalled, that the applicants in the case were all those affected by the triggering of Art 50 (§7), including British citizens exercising free movement rights in EU, and children and their carers whose immigrant status under EU law may be affected by leaving the EU.

 

The categories of rights are:

 

(i)            Those which are ‘capable of replication’ in English law (§58); but as yet – beyond a ‘Great Repeal Bill’ – which are not on the government’s ‘replication’ agenda. These rights include UK workers’ rights in the EU and, presumably, benefits and health rights of UK nationals living elsewhere in the EU.

 

(ii)            The rights of UK citizens and companies in relation to activities in other EU countries (§60).

 

(iii)            Rights which have an effect in UK domestic law, but which would be lost on withdrawal from EU. These rights include, said the court (§61) (and if this was all, I accept, they would not have clinched the case):

 

  • to stand for selection or, later, for election to the European Parliament and the right to vote in such elections
  • to seek a reference to the CJEU
  • to seek to persuade the EU Commission to take regulatory action in relation to matters within the United Kingdom, such as to investigate a violation of EU competition law or of EU environmental protection legislation occurring within UK and grant a remedy in relation to it.

 

(iv)            In the introduction to this section the judges pointed out (at §57) that ‘it is important to bear in mind that there are other substantial areas of EU law such as the schemes of regulation which take effect as part of the law of the United Kingdom’ which – for good or ill – will be lost. For example, in my area of law, the conformity provided for children law and maintenance enforcement, in particular, throughout all EU member states is a right which will be lost to UK nationals, and to their potential additional expense and disadvantage.

 

The Secretary of State accepted that category (iii) rights would be lost (§62). Of the remaining categories (i) and (ii), the court agreed with the applicant that rights might be lost. Of category (i) rights the court said that, without the Government having any draft legislation (eg its ‘Great Repeal Bill’) to replace these rights:

 

[65] … The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 [European Communities Act 1972] of effect. We also consider that the removal of the ability to seek authoritative rulings of the CJEU regarding the scope and interpretation of such rights would itself amount to a material change in the domestic law of the United Kingdom.

 

Of category (ii) rights, the court said that Parliament had in 1972 deliberately created rights which withdrawal from EU would undo:

 

[67] … The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other Member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972. Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament. Accordingly, the claimants are entitled to say that it would be surprising if they could be removed simply through action by the Crown under its prerogative powers (italics supplied).

 

And so, in the passage above, the discussion comes back – especially in the italicised passage – to Lord Hoffman’s comments in exp Simms. The court had already drawn attention to the earlier Divisional Court decision that ECA 1972 was not open to any principle of ‘implied repeal’ (§44). It could only be repealed by ‘express language in a subsequent statute or by necessary implication from the provisions of such a statute’ (per Laws LJ in Thoburn v Sunderland City Council [2003] QB 151 (at §62; QB Divisional Court): ‘It may be there has never been a statute having such profound effects on so many dimensions of our daily lives’).

 

The executive and fundamental rights

 

The Divisional Court started its review of the law under the heading: ‘principles of constitutional law: the sovereignty of Parliament and the prerogative powers of the Crown’. The court explained how these principles were balanced one against the other, starting from the 1688 constitutional settlement: that the executive (‘the Crown’) is subordinate to the law (or as Tom Paine stated in 1776, as he saw it then: ‘In United States the law is king’ not the other way around).

 

[26] This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It has its roots well before the war between the Crown and Parliament in the seventeenth century but was decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognised ever since.

 

This was expressed by Coke at the time of Charles I’s developing absolutism (over which – to a substantial degree – the Civil War was fought, and which the 1688 settlement sought to correct) as follows:

 

[27] Sir Edward Coke reports the considered view of himself and the senior judges of the time in The Case of Proclamations (1610) 12 Co. Rep. 74, that: ‘the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm’ and that: ‘the King hath no prerogative, but that which the law of the land allows him.’

 

The court cited the first two parts of the Bill of Rights 1688: that the suspension of laws by the Crown without Parliament’s consent is ‘illegal’; and the suspension of laws by the Crown, by the same token, is ‘illegal’ (§28). In support of this proposition the court cites in The Zamora [1916] 2 AC 77 at 90:

 

The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution.

 

The first part of this article can conclude with Prof AV Dicey, with whom – not surprisingly – the above quotes from Lord Hoffman accord. Said the court:

 

[22] In what is still the leading account, An Introduction to the Law of the Constitution by the constitutional jurist Professor AV Dicey, he explains that the principle of Parliamentary sovereignty means that Parliament has: ‘the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law … as having a right to override or set aside the legislation of Parliament.’ (p 38 of the 8th edition, 1915, the last edition by Dicey himself; and see chapter 1 generally)….

[23] The principle of Parliamentary sovereignty has been recognised many times in leading cases of the highest authority. Since the principle is common ground in these proceedings it is only necessary to cite the speech of Lord Bingham of Cornhill in R (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262 at §9: ‘The bedrock of the British constitution is … the supremacy of the Crown in Parliament …’.

 

‘Express language or clear necessary implication’

 

Lord Hoffman picks up the express provision point; and the Divisional Court develops it in its judgment. On this point the judges say that their view is that the Government case is ‘flawed at this basic level’ (§85). They explain:

 

[83] [There is a] presumption that Parliament does not intend to legislate in a way which would defeat fundamental human rights: see R v Secretary of State for the Home Department, ex p. Pierson [1998] AC 539 at 573G, 575B-G (Lord Browne-Wilkinson) and R v Secretary of State for the Home Department, ex p. Simms [2000] 2 AC 115, 131D-G (Lord Hoffmann). All these presumptions can be overridden by Parliament if it so chooses, but the stronger the constitutional principle the stronger the presumption that Parliament did not intend to override it and the stronger the material required, in terms of express language or clear necessary implication, before the inference can properly be drawn that in fact it did so intend….

 

This point, said the judges, had been ‘glossed’ over by the Secretary of State. He seemed to assume that ‘the onus was on the claimants to point to express language in the statute removing the Crown’s prerogative in relation to the conduct of international relations on behalf of the United Kingdom’. This ‘left out part of the relevant constitutional background’.

 

The position of the Secretary of State ‘gave no value to the usual constitutional principle that, unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers’ (the third constitutional principle referred to by Lord Hoffman above; and see The Zamora (above)).

 

Domestic law and prerogative powers

 

So what power resides in the Government – prerogative rights – to alter an individual’s domestic law rights? There is no power to alter the law, save where authorised by statute:

 

[86] First, [there is] the powerful constitutional principle that the Crown has no power to alter the law of the land by use of its prerogative powers is the product of an especially strong constitutional tradition in the United Kingdom… It evolved through the long struggle (to which we have referred at paragraph 26) to assert parliamentary sovereignty and constrain the Crown’s prerogative powers. It would be surprising indeed if, in the light of that tradition, Parliament, as the sovereign body under our constitution, intended to leave the continued existence of all the rights it introduced into domestic law by enacting section 2(1) of the ECA 1972 (and, in the case of category (ii) rights, which it passed the ECA 1972 to bring into existence) subject to the choice of the Crown in the exercise of its prerogative powers….

 

A reminder of this principle was provided when the Supreme Court recently explained the legality – or not, in that case – of a Government’s Henry VIII (ie autocratic) powers in relation to legal aid (R (The Public Law Project) v Lord Chancellor [2016] UKSC 39). Only Parliament can enact primary legislation; and only Parliament, not the executive, can repeal existing primary legislation:

 

[86]… As Lord Browne-Wilkinson put it in R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513 at 552E: ‘It is for Parliament, not the executive, to repeal legislation. The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.’

 

Further, it must be born in mind what Parliament intended when ECA 1972 was enacted:

 

[87] … The wide and profound extent of the legal changes in domestic law created by the ECA 1972 makes it especially unlikely that Parliament intended to leave their continued existence in the hands of the Crown through the exercise of its prerogative powers. Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again.

 

Rights and Parliament’s intention

 

So what did Parliament intend? ECA 1972 introduced rights into UK domestic law (and see §93(4)). Parliament’s intention was explained by the court thus:

 

[92] Interpreting the ECA 1972 in the light of the constitutional background referred to above, we consider that it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law (and to create the category (ii) rights) in such a way that this could not be undone by exercise of Crown prerogative power. With the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend (rights in categories (i) and (iii)) and on whose continued existence the wider rights of British citizens in category (ii) also depend. The Crown therefore has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU (emphasis added).

 

Therefore in relation to those rights, prerogative powers cannot be used to override those rights:

 

[94] In our judgment, the clear and necessary implication from these provisions taken separately and cumulatively is that Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers…. The ECA 1972 cannot be regarded as silent on the question of what happens to EU rights in domestic law if the Crown seeks to take action on the international plane to undo them. Either the Act reserves power to the Crown to do that, including by giving notice under Article 50, or it does not. In our view, it clearly does not.

 

Conclusion: rights only to be removed by Parliament

 

The above passage and those italicised in §92 suggest to me that the basis of the court’s decision is founded in the rights of those affected by UK legislation. Those rights were created by ECA 1972 and, if they are to be removed, this must be done by Parliament and not by the Government (executive, Crown etc). That is the way English law operates, and has done since the 17th century. It does not mean UK will not leave the EU; but that if it is to happen, the referendum was only the first step in that direction. Parliament – not the vague answers of the referendum or the dictat of Mrs May or her Government – must control the next steps as our law has required, at least since the 17th century.