BY LAWYERS for BRITAIN

“A deeply troubling and wrong-headed decision”

When it comes to using the prerogative for “less Europe”, there are implied limitations which do not seem to exist for “more Europe”

On 3rd November 2016 the Divisional Court handed down its judgment in R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). The court has, to the surprise of most informed observers, decided that it is outside the prerogative powers of the Crown for notice to be given under Article 50 of the Treaty on European Union to withdraw from the European Union.

In reaching this decision, the judgment has overturned the accepted understanding about the respective power of the Crown on the international plane to accede to and withdraw from international treaties, and the powers of Parliament to alter the internal law of the United Kingdom.

The European Communities Act 1972 was a constitutional innovation for the United Kingdom. It linked international treaties directly to the internal law of the United Kingdom by giving the European Treaties and supranational legislation made under them so called “direct effect.” That means that they have force in UK internal law – and therefore alter the content of the law – without recourse to Parliament.

The judgment argues that this feature of the 1972 Act means that the Crown has no power to withdraw from the EU treaties, because doing so would have the effect of altering domestic law, which only Parliament can do.

This argument is illogical and does not hold water. There are many acts which the government can carry out on the international plane under the European treaties which have the effect of altering UK domestic law, and in doing so either confer rights on people or deprive them of rights. Whenever the UK representative on the Council of Ministers joins in passing into law a directly applicable EU Regulation then the Crown in using the prerogative power to alter internal UK law without that alteration of the law going through Parliament. This is simply a consequence of the direct effect machinery of the 1972 Act.

So why should it be OK to have “more Europe” through exercise of the prerogative power, but wrong to have “less Europe” as a result of Article 50 being invoked and the direct effect parts of EU law ceasing to apply within the UK? Nothing in the wording of the 1972 Act supports such a distinction.

There is a further reason why this decision flies in the face of the obvious intention of Parliament. The Lisbon Treaty, which inserted Article 50 into the Treaty on European Union, was given effect in UK law by the European Union (Amendment) Act 2008. That Act therefore made the Article 50 power available for use by the Crown but did not specify that its exercise would need the approval of Parliament. That Act however explicitly provides for Parliamentary control over certain prerogative acts under the EU treaties, including Article 49 on Treaty revision. But notably, the statutory scheme of Parliamentary control of prerogative power does not extend to notifications under Article 50.

There has a been a long string of attempted challenges to the use of the prerogative power to extend EEC or EU powers, all of which have been rejected by the courts, sometimes in peremptory terms. However, when the prerogative is used to achieve “less Europe” in order to implement the decision of the British people which an Act of Parliament empowered them to take, it is suddenly found that there are implied limitations on the prerogative power which prevent it being used for this purpose.

We welcome the decision of the government to appeal from this judgment. We hope that the Supreme Court will apply the law in a more orthodox and logical way, allowing the government to fulfil its promise to the British people to implement their clear decision.
Martin Howe QC
Thomas Sharpe QC
Clive Thorne
Francis Hoa

COMMENT

Dixie Hughes:

The true title of the legal case that ended in the High Court on Thursday, in which three judges ruled that 650 individuals had the right to frustrate the wishes of 17.4 million voters; should have been “Parliament v the People”
By the European Referendum Act 2015, Parliament temporarily resigned its authority into the hands of those from whom it is derived: the electorate. This was voted for by 544 MPs to 53, on 9th June 2015.
The vast majority of MPs are of the Remainian ilk; but only the SNP members, possibly due to their referendum-losing heritage, actually voted against allowing the “Will of the People” to be expressed. It is arguable that they have some case for interfering with Brexit; the 544 have not the shadow of a justification for doing so.
The 544 include the Remainian rump that was so supremely confident that the People would give the “right” answer, they nodded the Bill through.
It also included the Brexit MPs who wisely kept shtum.
The Bill was approved by the House of Lords on 14th December 2015; Remainiacs again too slow to spot their chance; and the European Union Referendum Act received Royal Assent three days later.
The government pledge to be bound by the referendum result was repeated in the controversial Remainian pamphlet, announced on 6th April 2016 and delivered to every home in the UK a week or so later.
The wording used was; “This is your decision. The Government will implement what you decide.”
The sending-out of that pamphlet, containing that pledge, was debated in the House of Commons; though many MPs voiced objection to the pamphlet, not one MP or Peer called for that pledge to be denied or removed.
While the 2015 Referendum Act did not specifically state that the referendum was binding, the purpose of the referendum was billed by all sides as the place at which the decision on the UK’s membership of the European Union would be made.
There would have been no point in calling a referendum if its result was not intended to be respected.
The government could have hired focus groups.

Over past decades, there has a been a long string of attempted challenges to the use of the prerogative power to extend EEC or EU powers, all of which have been rejected by the courts, sometimes in peremptory terms.
However, when the prerogative is used to achieve “less Europe” in order to implement the decision of the British people, which an Act of Parliament empowered them to do, it is suddenly found that there are limitations on the prerogative power which prevent it being used for this purpose.
So why should it be OK to have “more Europe” through exercise of the prerogative power, but wrong to have “less Europe” as a result of Article 50 being invoked and the direct effect parts of EU law ceasing to apply within the UK?

But there is another crucial point.
When Bills are presented in Parliament they are accompanied by a “Briefing Paper;” an outline; so even the dimmest Lib-Dem MP will know what he’s voting for or against.
The European Union Referendum Bill 2015-16 was no exception.
By invoking the Bill’s briefing paper in their ruling, the High Court referred to a paper that in one crucial respect undermines that ruling.
This is from the relevant section in that briefing paper, entitled, ‘Types of Referendum:’
“It [the referendum] 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.”
Anyone spot what the High Court missed?
The wording does not say that the result of the referendum is designed to influence PARLIAMENT, it says it is designed to influence “the GOVERNMENT.”
The reason why it says that is that it was widely understood that parliament had indeed transferred its sovereignty to the people, and that it would then be up to the Government (not Parliament) to take the process further, and implement the will of the people.
In other words, on 9th June 2015, MPs actually voted specifically for the Government to take action; to use the Royal Prerogative.
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