Triggering Brexit and the UK Constitution: What the UK High Court’s judgement means
This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.
The High Court in the UK has ruled, in summary, that the Government cannot serve a notice under Article 50 of the treaty of the European Union without Parliamentary approval. This has delighted “Remainers” and inflamed “Brexiters” in equal measure. “Brexiters” in particular are claiming this is a judicial intrusion into politics. However, this misses the fundamental point of the decision (and it is not the first time this point has come before the courts, as is evident from the array of prior cases referred to). And in particular, it misses the point that the court has at no point called into question the referendum result or whether it can be implemented.
The UK both benefits from and is hindered by not having a written constitution. This means it is difficult to point to any written rule and say “this is the constitutional rule”. Instead, it has to be derived from centuries of laws and practices. And what today’s case really concerns is the extent of the Government’s power to act unilaterally and without requiring the approval of Parliament.
At its core, the question is whether the UK Government on its own can act to change a law passed by Parliament. It is well established that the UK Government, acting under the “Royal Prerogative” (the power of the Crown to conduct international affairs), has absolute authority to enter into and withdraw from international treaties. However, it is equally well established that neither the UK Government nor the Crown has absolute authority to change the laws of the UK as passed by Parliament. What we have here is an instance where the consequence of the Article 50 withdrawal would be to effectively usurp the provisions on several acts of the UK Parliament, most notably the European Communities Act 1972 which gives effect to the EU treaties and law in the UK.
The decision in the High Court effectively says no more than that, because Parliament passed the 1972 Act (and others), Parliament alone has the authority to change or repeal it. The Government needs Parliament’s authority to do something which will have that effect. In other words, the court is doing little more than what it sees as supporting the fundamental principle of the UK constitution of Parliamentary sovereignty.
The UK Government has announced that it will appeal the decision and the case is viewed as having such significant constitutional importance that unusually the full Supreme Court comprising 11 judges will hear the appeal. It is unlikely that the full court is being convened simply because this is about the Brexit vote – it is far more likely that the court has taken this step because it recognises the fundamental constitutional issue – the boundary between executive (Government) authority and Parliamentary authority - which is being considered.
Conclusion
So what does that mean in terms of the Brexit decision? Probably nothing: Parliament has been instructed by a majority vote of the British people to leave the EU. The court has said that Parliament has to take that step, not the UK Government unilaterally. How Parliament wishes to authorise the UK Government to act in that regard is a question for Parliament to decide, and this goes to the nub of the political outcry – how will Parliament act?
It is unlikely that Parliament will go against the result of the referendum (and opinion polls are not indicating any appetite amongst the UK electorate for a second referendum). The question will be how much control Parliament seeks to exert over the UK Government in the Brexit process. “Brexit means Brexit”. We just don’t have any consensus, even amongst the “Brexiters”, on what “Brexit” means.
In the meantime, the Supreme Court is scheduled to hear the appeal in early December. At least until we hear the result of that appeal, uncertainty over when the Article 50 process is triggered is back on the table.
