By Nigel Hatch PC
On 3rd November 2016 the High Court of the United Kingdom (UK) delivered a landmark judgment of profound constitutional significance in Gina Miller V. Secretary of State for Exiting The European Union [2016] EWHC 2768 (Admin) upholding the Petitioner’s contention that as a matter of constitutional law of the UK Parliament alone has the power to trigger Brexit by notifying Brussels of the UK’s intention to leave the European Union. The Bench that delivered the Judgment comprised of Lord Thomas of Cwmgiedd the Lord Chief Justice of England and Wales, Sir Terence Etherton, the Master of the Rolls and Lord Justice Sales.
Britain’s Entry into the EEC
On 1st January 1958, France, Federal Republic of Germany, Italy, Netherlands, Belgium and Luxemburg signed the Treaty of Rome which established the European Economic Community (EEC). This was preceded by the establishment of the European Coal and Steel Community (ECSC) in 1952. In 1965 the EEC merged with the ECSC and the European Atomic Energy Community. It was this initial formation that ultimately led to the creation of the European Union in 1993.
Britain’s application to join the EEC was made in 1961 when Harold MacMillan was Prime Minister and leader of the Conservative Party. He entrusted this task to Edward Heath, a rising star, who was appointed as Junior Foreign Secretary.
Britain’s application was resisted by De Gaulle, the French President who “did not want to change the character of Europe and therefore did not want (the British) to bring their great escort in with them. India and African countries had no part in Europe.”[i] The French objection was an allusion to Britain’s imperial legacy. Indeed MacMillan had some difficulty in persuading the Commonwealth. At its conference in 1961 he skillfully sold the idea of Britain joining the EEC in terms of the economic benefits that would ensue. Britain’s entry into the EEC would not be incompatible with the Commonwealth and the expanded market Britain would be able to offer through joining the Europeans.
Other factors also influenced Britain’s belated application to join – Britain’s special relationship with the USA and fears about the loss of sovereignty that membership may bring in its wake. Moreover political opinion in Britain remained sharply divided. There were skeptics even in MacMillan’s cabinet (his Deputy Rab Butler was suspected of leading a possible cabinet revolt) whilst the Labour Party under Gaitskell distanced itself from this European enterprise. Gaitskell famously declared that joining would mean the “end of a thousand years of history”.[ii] Other Labour leaders like Harold Wilson and Denis Healey were also in opposition in 1962. However under Wilson’s leadership in 1963 the Labour Party had a change of heart and decided when it regained power in to seek to enter.
The French in 1963 formally vetoed Britain’s application to join the EEC. This was a personal blow to MacMillan who considered it an act of ingratitude to Britain and a personal snub. However, Edward Heath as Prime Minister successfully negotiated Britain’s entry into the EC in 1973. By then France was led by President Pompidou who did not share De Gaulle’s fears of Anglo-Saxon domination of the EEC.
Britain’s entry into the EEC led to Parliament enacting the European Communities Act 1972 (ECA 1972) to give effect to community law in the national legal systems of the United Kingdom. By this Act the British Parliament gave effect in each jurisdiction of the United Kingdom (England and Wales, Scotland and Northern Ireland) to binding obligations and rights arising under the Treaties Britain had acceded to.
BREXIT
Despite Britain’s entry in 1973 nagging doubts remained. The Labour Government held a Referendum in 1975 which was the first ever in the UK. The question asked was “do you think that the United Kingdom should stay in the European Community (Common Market)?”. 67.2% of those who voted answered in the affirmative and the UK remained in the EEC.
But despite her entry, British politics continued to be dogged with “Eurosceptics” who were concerned about the increasing power of Brussels over the autonomy of British decision making, and “Europhiles” who were pro EEC Ministers and Parliamentarians. There was a constant concern that Britain’s sovereignty had been eroded by her membership.
This culminated in the decision taken by Prime Minister David Cameron to hold another referendum in Britain which was the result of a general election manifesto commitment by the Conservative Party to honour the result of the referendum, whatever the outcome. Cameron who won that election in May 2015 also commenced negotiations with the EU on some of the areas that had caused concern in Britain. They included limiting in-work benefits for EU citizens working in Britain, stronger protection for Britain who was outside the Eurozone and more power for Parliament to stop unwanted EU laws. The referendum was held on 23rd June 2016 and the question asked was “Should the UK remain a Member of the EU or leave the EU?”.
The Conservative party riven with disagreements on this had Ministers openly in favour of Brexit despite Cameron’s position of wanting the UK to remain in a redefined relationship with the EU. By a slender majority the electorate decided that Britain should exit. Significantly Scotland voted overwhelmingly to remain in the EU.
Despite the Referendum being non-binding the Government and Opposition agreed that the will of the people would be respected. The EU Referendum Act 2015 under which the referendum was held contained no provision legally requiring the Government to act in a specific way, nor did it explicitly provide that the result is binding or how the result would be implemented. This caused uncertainty and confusion in the aftermath of the referendum as there was no consensus as to the legal modality of Britain’s exit.
With Cameron’s resignation he was succeeded as Prime Minister by Theresa May. Her cabinet’s position was that negotiations leading to Britain’s exit were a matter for the Government using its prerogative powers without parliamentary oversight. This caused consternation even within the Conservative Party and rumblings about by-passing Parliament increased.
This led to a seminar in July 2016 of concerned members of the House of Lords (Britain’s upper House) to consider in particular the roles that Government and Parliament should play in the triggering of Article 50 of the Treaty on European Union – the legal mechanism by which the UK will leave the EU. The seminar concluded that the constitutional roles of the Executive and the Legislature must be respected, beginning with parliamentary involvement and assent for the invoking of Article 50.
The Legal Challenge and The Court’s Judgment
Article 50 which came into effect with the Lisbon Treaty in 2009 gave an express right for a Member State to leave the European Union. It provides that any Member State may decide to withdraw from the Union “in accordance with its own constitutional requirements”. This allowed both sides to pursue rival interpretations because given the uncodified nature of the UK’s constitution it was not entirely clear what the UK’s “constitutional requirements” are for the purposes of Article 50.
The Government’s position was that it can invoke Article 50 in the exercise of prerogative powers, and that “there is no legal obligation to consult Parliament on triggering Article 50”. Lord Keen of Elie QC, the Advocate General for Scotland, stated in the House of Lords that “the Executive has certain prerogative powers that it exercises in international legal matters, including the making and unmaking of treaties. That remains the position.” The contrary view was that as a matter of domestic law, the Government is unable to trigger Article 50 without the consent of Parliament.
“Prerogative powers” constitute the residue of legal authority left in the hands of the Crown after the constitutional settlement of the 17th century which established the supremacy of Parliament and consist mainly of executive governmental powers.
In Miller’s Case the Bench had to decide between two competing assertions which involved high constitutional principle – the Claimant’s principal contention that as Parliament was sovereign only Parliament could decide to give notice under Article 50 to trigger the process of withdrawal, or whether as contended by the AG this was a matter entirely for the Government using its prerogative powers.
Miller the lead Petitioner was a Guyanese-born businesswoman, whilst the second Claimant Deir Dos Santos a London hairdresser. Both are British citizens. Their challenge was publicly funded by many who were concerned that Brexit may deprive them of existing rights. Death threats were made against Claimants, prompting the Judges to warn that those interfering with the case could be imprisoned for contempt of Court.
Lord David Pannick, Q.C. led for Miller whilst Dominic Chambers, Q.C. led for Dos Santos. The Attorney General, Jeremy Wright QC led for the Government. Other eminent Silks led for other parties.
Government lawyers argued that prerogative powers were a legitimate way to give effect “to the will of the people” who voted to leave the EU. The AG submitted “This is not a narrow legal challenge … It seeks to invalidate the decision already taken to withdraw from the EU.” The Claimants relied inter alia on the Bill of Rights 1689, which prohibits the use of the prerogative in circumstances where its exercise would ‘suspend’ or ‘dispense’ statutory law.
Both sides agreed that the question to be decided was a justiciable question for the Courts to decide. In the Judgment the Bench at the outset made it clear that the Court’s decision had no bearing on the question on the merits or de-merits of Britain’s withdrawal nor on Government policy which are matters of political judgment to be resolved through the political process.
The Court in answering this question had to go to constitutional bedrock and the architecture of the British Constitution.
Whilst recognizing that the UK does not have a Constitution found entirely in a written document, the Court nevertheless reasserted that the UK has its own form of constitutional law reflected in fundamental rules of law recognised by both Parliament and the Courts that govern the exercise of public power and which distribute decision making authority between different entities in the State and define the extent of their respective powers. The UK is a constitutional democracy framed by legal rules subject to the Rule of Law and the Courts have a fundamental constitutional duty to enforce rules of constitutional law in the same way as the Courts enforce other laws.
It was common ground that the most fundamental rule of UK constitutional law is that of the sovereignty of Parliament and that legislation enacted with the consent of both Houses of Parliament is supreme. Parliament can by enactment of primary legislation (Acts) change the law in any way it choses and there is no superior form of law than primary legislation save only where Parliament has itself made provision in this regard. The ECA 1972 which confers precedence on EU law is the sole example of this. Nevertheless Parliament remains sovereign and supreme and has the power to repeal the ECA 1972 if it wishes.
The Court recognised that the extent of the powers of the Crown under its prerogative are delianated by UK constitutional law.
However it held that an important aspect of the fundamental principle of parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers. There are boundaries to prerogative powers which cannot alter legislation or the common law unless Parliament had authorised it. There was nothing in the ECA 1972 that Parliament had so authorised.
The Court held that the subordination of the Crown (i.e. the executive government) to law is the foundation of the Rule of Law in the UK. It had its roots well before the war between the Crown and Parliament in the 17th century but was decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognised ever since as embodied in the principle “the King had no prerogative, but that which the law of the land allows him”[iii].
Consequently although the conduct of international relations including the making and unmaking of Treaties was an exercise of prerogative powers, nevertheless domestic law could not be changed by any exercise of prerogative powers. Thus, the Court recognised the ‘dualist’ position that existed in the UK which is that the entering into a Treaty does not automatically render its provisions part of the domestic law. There has to be an Act of Parliament that incorporates the provisions of the Treaty. The Government cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights.
The Court recognised that EU law in the relevant Treaties in some parts contained rights for British citizens which were incorporated into domestic British law by Acts of Parliament. However as Parliament had introduced these rights through legislation similarly Parliament had to legislate to amend or remove them.
Consequently Court upheld the Petitioner’s contention that the Government was bereft of any prerogative power to exit from the EU because it would infringe the legal rights of the Petitioners.
This Judgment led to a vicious assault on the Bench by the pro Brexit press. The “Daily Mail” labeled the three judges “enemies of the people”. “The Sun” and the “Daily Telegraph” were also extremely critical.
This in turn led to the Bar Council of the UK condemning the failure of the Justice Secretary to adequately defend the Bench given the constitutional principle of the independence of the judiciary and that Judges cannot speak in their own defense.
Liam Fox Minister for International Trade told Parliament that the government would appeal to the Supreme Court (formerly named the House of Lords) against the decision. The hearing will take place in early December. Fox had a role in the 1997 agreement between the then President Chandrika Kumaranatunga and Ranil Wickremasinghe that there would be a bipartisan approach on the ethnic issue.
(Nigel Hatch is a Silk at the Sri Lankan Bar and was legal advisor the President of Sri Lanka 2003-2005. He has been a Member of Sri Lanka’s delegation to the UN 2005 and part of Sri Lanka’s negotiating team on defense matters with India 2004/5)
[i] The official biography of MacMillan by Alistair Horne Vol II 1957 – 1986 at pg. 318.
[ii] Labour Party Conference, Brighton, October 1962.
[iii] Sir Edward Coke in “The case of Proclamations” (1610) 12 Co. Rep 74.
This article was carried in the Island paper late 2016.
