High Court gives “Brexiteers” a lesson in British constitutional law

In a judgment that was keenly awaited both at home and abroad, the High Court of Justice of England and Wales yesterday made it clear to British Prime Minister Theresa May that the procedure for leaving the EU cannot be set in motion without the consent of the British Parliament. Contrary to the impression created by the referendum held in June 2016, the High Court makes clear in this judgment that the constitution of the United Kingdom remains founded on the principle that ‘sovereignty’ lies with Parliament.

The background to the case Miller v R is well known. On 23 June 2016 the British government held a referendum on whether the UK should remain a member of the European Union (EU). The British people voted to leave the EU. Then Prime Minister David Cameron resigned and was replaced by Mrs May, who committed herself to making “Brexit” a success.

Shortly after the announcement of the referendum result, proceedings were brought before the Northern Irish and London courts to challenge the power of the British government to start the procedure for leaving the EU (see the judgment in the Northern Irish proceedings).

Since the Treaty of Lisbon, the EU Treaties provide for a procedure for leaving the EU (see Article 50 Treaty on European Union (TEU)). A Member State can start this procedure “in accordance with its own constitutional requirements” by notifying the European Council to that effect (Article 50(1) and (2) TEU). Once the notification has been made, a two-year period starts. Within this period, which can be extended unanimously by the European Council (Ibid, para. 3), the EU and the Member State concerned must reach a withdrawal agreement.

At issue in the proceedings in Miller v R is whether the British government can make the notification to the European Council on the basis of its power to exercise the so-called ‘royal prerogative’ (Crown or Royal Prerogative), or whether the government requires the consent of Parliament to do so.

The question

As A.V. Dicey, the patriarch of modern British constitutional law, put it, the royal prerogative is “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.” (A.V. Dicey, Introduction to the study of the law of the constitution, Liberty Classics, 1982, Reprint. Originally published: 8th ed. London: Macmillan, 1915. 1983, p 424). In other words, the royal prerogative extends only as far as Parliament allows.

This point follows from that other principle of British constitutional law, according to which Parliament is the highest source of law. As the same Dicey put it: “The principle … of parliamentary sovereignty means neither more nor less than this, namely that Parliament has the right to make or un-make any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” (Ibid, p xxxvi).

“To make or un-make any law whatever” is traditionally understood in the UK as the power to change domestic British law. International law is understood in the UK as a separate legal order. Or, as a Canadian lawyer once put it: in the Commonwealth tradition, domestic law is “here” and international law “there”.

From this view it follows in turn that the power of Parliament is limited to the territory of the British Isles. On the international stage, the executive (the “Crown”) in principle has free rein.

EU law, however, is not just international law; in many cases it has direct effect and takes precedence in the event of a conflict with a rule of domestic law. When the UK joined the then European Communities, the British Parliament therefore adopted an Act providing a domestic legal basis for the application of EU law within the British legal order (the European Communities Act 1972).

The interplay of these various elements – the royal prerogative, parliamentary sovereignty, the special characteristics of EU law and the adoption of the European Communities Act 1972 – did not make the question the High Court had to answer any simpler. The court thus had to examine

1. whether the notification to the European Council could be made directly on the basis of the royal prerogative and
2. whether the European Communities Act 1972 itself could serve as the legal basis for the government's power to make the notification, on the idea that the effect of EU law in the British legal order permitted by the Act would be dependent on the UK's continued EU membership, the latter matter falling within the government's competence.

The judgment

The High Court answered both questions in the negative. Mindful of the doctrine of parliamentary sovereignty, the court first held that Parliament, by adopting the European Communities Act 1972, had limited the scope of the royal prerogative to such an extent that the government could not decide to leave the EU independently of Parliament.

Of particular importance here is the fact that the court – rightly or wrongly – regarded the notification to the European Council as the first step in an irreversible process. Precisely because the British government's decision to start the withdrawal procedure was deemed irreversible, the court held that the government would thereby indirectly change domestic law – namely the operation of EU law within the British legal order on the basis of the European Communities Act 1972. This, the court held, constitutes a violation of the principle of parliamentary sovereignty (see paragraphs 92 to 94 of the judgment).

The court also answered the second question in the negative. Had Parliament intended to make the operation of EU law within the British legal order dependent on the government's will to remain a member of the EU, Parliament should have used clearer language to that effect. According to a more convincing reading of the text of the European Communities Act 1972, again mindful of parliamentary sovereignty, Parliament intended to guarantee the effect of EU law unconditionally (see paragraph 81 et seq. of the judgment).

What now?

The British government thus comes home empty-handed. As “Brexit” minister David Davis admitted, unless the UK Supreme Court decides otherwise, the notification to the European Council will therefore require an Act of Parliament. This means at the very least that the timeline put forward by the Prime Minister will be difficult to maintain and, less likely, that Parliament will prevent the start of the withdrawal negotiations, which could in turn lead to the resignation of the government.

The government has already indicated that it will appeal against the decision of the High Court. This brings the case before the UK Supreme Court. The Supreme Court will be faced with a well-considered decision of the High Court, at least as far as the interpretation of British constitutional law is concerned.

Less clear, on the other hand, is the EU law question whether the decision to start withdrawal negotiations is indeed irreversible. It seems not unlikely that the Supreme Court will have to refer this question to the Court of Justice of the EU, given that Article 267 of the Treaty on the Functioning of the EU (TFEU) provides that “[w]here any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law [such as the Supreme Court], that court or tribunal shall bring the matter before the Court.”

Since the irreversibility of a decision to start the withdrawal negotiations forms the premise of the High Court's further reasoning, and in that sense will be of particular importance for the ruling of the Supreme Court, it is remarkable – and rather ironic – that the ball ultimately ends up in the court of the Court of Justice.

To be continued.

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