Law and Politics in the Supreme Court

Phil Syrpis, University of Bristol Law Schoolsyrpis

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill, authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit. It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion.

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Miller – A Decision in Defence of the UK Constitution

Prof Iyiola SolankeBlogPhoto

The UKSC has spoken. And as many had expected (perhaps in their more sanguine moments even the Government legal team) it has upheld the decision of the High Court that legislation is required prior to the triggering of Article 50 TEU. The judgement should become compulsory reading in Constitutional Law, especially because it sets out clearly the separation of powers between the government and parliament, in particular the law making powers of each and most significantly the reach of those laws made using institution specific law-making powers.

The UKSC remind that the basis of the prerogative power asserted by the government is in the principle of dualism – that international law and domestic law operate in independent spheres [55]. Thus although treaties signed under international  law are binding on the UK in international law, such treaties are not part of UK law and give rise to no legal rights or obligations in domestic law. Therefore just as treaties made by Ministers are not governed by domestic law, domestic law made to give national effect to those treaties cannot be governed by Ministers. As put in JH Rayner by Lord Oliver of Aylmerton:

“As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation…” [56].

Hence, as put by the UKSC ‘…the dualist system is a necessary corollary of Parliamentary sovereignty, or, to put the point another way, it exists to protect Parliament not ministers’ [57]. In coming to this conclusion the UKSC should be seen not as ‘enemies of the people’ but on the contrary their friends: by protecting parliament, they also protect the people, ensuring that governments do not undermine the citizenry by imposing decisions upon them which have not been put before them or their representatives (ie Parliament). This may be of especial resonance to the 28% who did not use their vote in the EU referendum.

The ECA 1972, passed by Parliament to incorporate the Treaty of Rome into domestic law, is uncontroversially described as more than an ordinary statute. This assertion of the constitutional character of the 1972 Act is not new – it was set out in Thoburn and R (Buckinghamshire County Council) v Secretary of State for Transport. Importantly, the Court highlights the crucial distinction in relation to its dual impact – first it provided that ‘rights, duties and rules derived from EU law should apply in the United Kingdom as part of its domestic law’ and secondly created a ‘new constitutional process for making law in the United Kingdom.’ The former is described as ‘exclusively a question of EU law’; the latter ‘exclusively a question of domestic law’ [62].

From here it requires only reiteration of traditional reasoning to conclude that oversight over the domestic constitutional process remains with Parliament not government. As such, Parliament can legislate to alter the domestic constitutional process, the status of EU institutions or even the status EU law. This is not constrained by the primacy of EU law, or any rule of EU law because this is a question of the domestic constitution for Parliament. Parliamentary sovereignty is in 2017 as it was in 1972 and ‘…EU law can only enjoy a status in domestic law which that principle allows. It will therefore have that status only for as long as the 1972 Act continues to apply, and that, of course, can only be a matter for Parliament’ [67].

Thus just as Parliament decided in the 20th century when the Treaty of Rome should have domestic impact, it is for Parliament to decide in the 21st century when that ceases to apply; then as now this remains a question for Parliament, not the Government. The Court rejects the argument asserting that the 1972 Act foresees use of prerogative powers – without prior Parliamentary authorisation – to break the constitutional legal tie made by Parliament between EU law and the UK. On the contrary, it concludes that,

“… by the 1972 Act, Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties.”

Given the long-standing principle of parliamentary sovereignty, one may again wonder why the EU referendum was necessary. The judgment can be read as adding weight to assertions that the EU referendum was a response to party political and not national interests.

The Miller judgment: Why the Government should argue that Article 50 is reversible

Prof Phil Syrpissyrpis

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50.

This strong statement of the rights of Parliament ought, in a rational world, to appeal to the instincts of leave supporters. At least part of the point of voting to leave the European Union was to ‘take back control’ from unelected bureaucrats in Brussels, and to return that power to the UK. In the same way as ‘we’ want to have control over the decision-making process in the EU, ‘we’ might also want to have some control over the actions of our (at least arguably, in this instance, also unelected) Government. The High Court’s judgment amounts to the simple assertion that, according to our Constitution, ‘we’ exercise this control via Parliament (and not, for example, via a ‘mandate’ given to the Crown by the result of the referendum (see [105]-[106])). The reaction of many on the leave side – and the Daily Mail deserves a particular mention for Friday’s front page – is a sad indictment of the state of debate in this country.

Unless the Government changes its argument when the decision is appealed (and the hearing is due in early December), the Supreme Court, too, is likely to decide that, according to the UK’s own constitutional requirements, the decision to trigger Article 50 is for Parliament, not the Government. Already, there is fevered speculation surrounding the likely reactions in Government, in the Commons and the Lords, and the devolved assemblies.

And yet, the judgment proceeds on the basis of ‘common ground’ between the parties that ‘a notice under Article 50(2) cannot be withdrawn, once it is given’ [10]. This, it turns out, is significant for the High Court. The reason why the Crown cannot give notice under Article 50, is that domestic law rights will, inexorably, be affected by the decision. In various parts of the judgment, the decision to give notice under Article 50 is treated as equivalent to the decision to withdraw from the EU.

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The remarkable Government case in the Art 50 litigation

Prof. Piet Eeckhoutpiet-eeckhout

[This piece was originally posted on the London-Brussels One-Way or Return blog and is re-posted here with kind permission.]

It is now about a week since the hearings concluded in the litigation, before the High Court, on whether the UK Government can trigger Art 50 TEU, or whether instead an Act of Parliament is required. The transcript of the hearing makes for fascinating reading. We will have to see what the judges decide, but I cannot refrain from making the point that the Government’s case is weak. Government lawyers are of course confined in what they can argue, and what not, by what their client, i.e. politics, wants. It seems like the client has not dealt them a good hand. For the Government’s case is built around a set of propositions which are in huge tension with one another. They are:

  • The 2015 Referendum Act, which organised the referendum, did not confer on the Government the power to trigger Art 50. At most, it did not disturb a pre-existing power (the Royal Prerogative).
  • The Art 50 notification cannot be revoked. In the words of Lord Pannick QC, once the bullet has left the gun it will definitely hit the target: exit after 2 years, or at such time as the withdrawal agreement enters into force.
  • The Government can make treaties and withdraw from them. But for there to be effect in domestic law of either the making a treaty, or withdrawing from it, Parliament must be involved. This last proposition is confirmed in the following, fascinating exchange.

“THE LORD CHIEF JUSTICE: I think, sorry, if I understood my Lord’s question, you accept that if the government wanted to amend the treaties or withdraw from them so that effect was given to withdrawal in domestic law, there would have to be an Act of Parliament.

THE ATTORNEY-GENERAL: Yes.

THE LORD CHIEF JUSTICE: Whether it is amending or withdrawing, it doesn’t make any difference.

         THE ATTORNEY-GENERAL: Yes.

THE LORD CHIEF JUSTICE: I think that was the point. It is the effectiveness in domestic law. There is no difference between amending and withdrawing, you have to have a statute?

THE ATTORNEY-GENERAL: Yes, in order for there to be an effect in domestic law we accept that Parliament’s involvement would be necessary.”

At the end of this exchange the Attorney-General confirms that Parliament’s involvement would be necessary to give domestic effect to Brexit. In other words, the Government could negotiate a withdrawal agreement, but such an agreement could take effect in UK law (much like the conclusion of a new treaty) only if Parliament legislated to such effect. But this is contradicted by proposition (2). That proposition accepts that, once the trigger has been pulled, withdrawal is outside the Government’s control. It will happen, whether the Parliament legislates or not. Crucially, this includes the effect in domestic law. The UK cannot, in its domestic law, keep all extinguished EU membership rights and obligations alive. That is so, quite simply, because at least some of those rights and obligations require membership, and the cooperation of the EU institutions and other Member States. Just one example: UK citizens will no longer be able to vote for the European Parliament, after withdrawal, and it is wholly irrelevant whether the UK Parliament leaves such a right on its statute book or not.

In the Government’s case withdrawal is therefore completely different from the law and practice of negotiating and approving new EU Treaties (or amendments to them) – contrary to what it claims. That law and practice is such that a new Treaty cannot enter into force unless it has been ratified by each member State in accordance with its constitutional requirements (i.e. approved by its parliament): see Art 48 TEU (there is a simplified revision procedure, but even that allows national parliaments to block). The logic is that the EU does not finally agree new rights and obligations until all national parliaments have approved them, and incorporated them into domestic law. So the logic of the prerogative not interfering with domestic legislation is fully respected for the negotiation of new treaties. But for withdrawal the Attorney General effectively argues the reverse: the UK Government can decide on withdrawal, including its inescapable domestic effect, and it doesn’t need Parliament’s approval.

Proposition (1) is relevant because it means that the Government is not arguing that the 2015 Referendum Act conferred a power on it to give effect to a negative referendum result, by triggering Art 50. So Parliament never authorised the triggering, and it cannot, once the bullet has left, undo withdrawal, either at the international plane or at the domestic level.

I cannot see how these three propositions could be reconciled. The most remarkable one, from the perspective of the Government’s case, is the second. If the Government argued that the Brexit bullet can be pulled back to the gun – in other words that the UK Government could always revoke the notification – there would be a much stronger case for the exercise of the prerogative, as many have noted. Parliament could then, at any stage of the negotiations, force the Government to withdraw from withdrawal. But for political reasons the Government doesn’t argue this. The big question looming over the litigation is whether the courts can simply assume that the Art 50 notification is irrevocable, when that point is so critical.

An analysis of the EU law questions surrounding Article 50 TEU: Part Two

Dr Philip Syrpis

This is the second and final part of this series; the first is available here.

7. What is the status of the UK during the negotiation process?

As discussed above, subject to application of paragraph 4, which deals with participation in discussion in the European Council and Council relating to the withdrawal process, the withdrawing State remains a Member State of the EU, with rights and obligations intact.[1]

As regards the rights of the withdrawing State, certain interpretive difficulties may arise in any attempt to delineate the situations in which the withdrawing State may, and may not, be involved in European Council and Council decision-making. Once again, this is an area in relation to which the guidelines provided by the European Council may provide clarity. In practice it seems almost inevitable that the role and influence of the withdrawing State will inevitably diminish. It is unclear whether the State will have an interest in influencing the making of decisions at EU level which might well never concern it; and arguable that it is not legitimate to afford it such a role. The power of the argument against involvement will of course depend on the extent to which it is envisaged that the withdrawing State aspires to continue to have a relationship with the EU.

As regards obligations, the UK will continue to be bound by EU law rules until the withdrawal agreement enters into force.[2] This includes new EU legislation adopted after Article 50 is triggered, but before the withdrawal agreement enters into force.[3] While the UK is due to assume the Presidency of the Council in the second half of 2017, it is anticipated that alternative arrangements will be made in order to ensure the efficient functioning of the Union.[4] The principle of sincere cooperation enshrined in Article 4(3) TEU would continue to apply, and there are suggestions that it might be used in relation to the conduct of the withdrawing State during the process of withdrawal.[5]

8. How is the withdrawal agreement concluded?

Finally, there are significant uncertainties relating to the conclusion of the withdrawal agreement, both by the EU and the withdrawing State.

Let me begin with the position as regards the EU. The withdrawal agreement itself is negotiated as an EU external agreement, as is made clear by the reference to Article 218(3) in Article 50. Paragraph 2 provides that the agreement is to be concluded ‘on behalf of the Union by the Council acting by qualified majority after obtaining the consent of the European Parliament’.[6] Thus, it is possible for an agreement to be reached without the approval of all 27 Member States; and, unlike in the case of accession, for the scope of the Union to be altered notwithstanding the lack of the unanimous consent of the Member States. Equally, it is possible for an agreement not to be concluded notwithstanding the fact that it is approved by the governments of all the Member States. No agreement can be concluded if a majority in the European Parliament vote against it. It is also possible, as discussed in e) above, that alongside any withdrawal agreement, there will be another agreement, or set of agreements, dealing with the future relationship between the withdrawing State and the Union. To the extent that any such agreements are mixed agreements, they require ratification by all Member States, a process which will inevitably slow down the conclusion of the negotiation process.[7]

On the side of the UK, the withdrawal agreement would require ratification in Parliament, in accordance with the UK’s constitutional requirements.

How might these questions be settled?

The discussion so far indicates that many of the EU law questions relating to the process of withdrawal from the EU are unresolved. Nevertheless, given the uncertainty inherent in Article 50, it is contended here that it is possible, perhaps probable, that there will be litigation in relation to the process. There is the potential for such litigation to occur at both the national and the European level. It is difficult, at this stage, to predict the form which such litigation might take, but there are a range of claims which it is possible to envisage.

Claims may come before the European Court of Justice in the following ways. The most obvious basis for legal action will be in relation to the content and scope of any withdrawal agreement. Such an action might relate both to the procedures through which the withdrawal agreement was reached, and the substantive terms of any such agreement; and might come before the Court either directly in an Article 263 TFEU judicial review action, or indirectly, via a preliminary reference from a national court under Article 267 TFEU. It may, in addition, be possible to seek an advisory opinion from the Court via Article 218(11) TFEU as to whether the agreement is compatible with the Treaties. Actions may also be brought at earlier stages in the process, for example in relation to whether the negotiation process is compatible with EU law. As has been mentioned above, it is possible to envisage the making of claims against the withdrawing State, not only by the Commission under Articles 258 and 260 TFEU, but also, potentially, by the European Council and Council under Article 7 TEU.

There is already discussion of legal action in the UK on the basis of the conduct of the referendum campaign, and over the constitutionality of any decision to pull the Article 50 trigger.[8] Such litigation is likely to raise questions relating to the interpretation of EU law (most obviously, in relation to the interpretation of Article 50, perhaps based on the points discussed above), which the UK courts may decide to refer to the Court of Justice. At each stage of the process, legal action is possible – for example in relation to the conduct of the negotiations, and of course, in relation to the scope and substantive content of the withdrawal agreement(s).

This paper suggests that, in order to avoid the risk of litigation, the rules of the process should be clarified via the guidelines to be provided by the European Council. So as to be able to fulfil this function, the guidelines must be provided prior to any decision by the UK to trigger A50, and should provide as much clarity as possible in relation to the key questions discussed above, including in particular in relation to the ability of the UK to rescind the notification process, the scope of the withdrawal agreement(s), the status of the UK during the withdrawal process, and the mechanisms through which the withdrawal agreement(s) may be concluded. It is recommended that the UK government be fully involved in the drawing up of these guidelines. It may, of course, be that agreement is impossible to attain, or that the European Council refuses to provide guidelines before the decision to trigger Article 50. In such circumstances, it may be that there is litigation in relation to the Article 50 process, with courts playing a key role in shaping the process of withdrawal.

A suggested way forward

It hardly needs to be said that this is a crisis situation for the European Union. The prospect of the withdrawal of the UK from the EU is fraught with economic and political risk. Article 50 is intended to provide for the orderly exit of States from the Union. Whether or not this goal is achieved will largely depend on the conduct of the withdrawing State and the process of negotiation. Nevertheless, the legal framework in which the negotiations take place is also significant, as it determines the parameters within which the range of political actors involved will frame their strategies. The text of Article 50 provides very few answers. Nevertheless it envisages the provision of guidelines by the European Council. These may operate as the vehicle through which the answers to the legal questions identified in this paper are developed. In order to be able to play this role, they should, in the wake of the referendum outcome, be provided in advance of any decision by the UK to trigger Article 50. And, to the extent that this is possible, they should, notwithstanding the wording of Article 50(4), be agreed in negotiation with the UK, in order to minimise the risk of what may prove to be complex litigation, across more than one jurisdiction, in relation to the conduct of the withdrawal process.

I have argued above for Article 50 to be interpreted in a way which ensures that the UK is best able to maintain a working relationship with the UK, and achieve a settlement in which the interests of citizens of the EU are best protected. This suggests that the European Council guidelines should provide not only for a withdrawal agreement, but also for an agreement which defines the future relationship between the UK and the EU. To the extent that this objective is not achievable within two years, the European Council should commit to extending the time period. Most importantly, it should be made clear it is possible for the UK to rescind its notification, together with any procedural steps to be taken in order to stop the process.

Once there is more clarity, the UK will be able to consider its response. The calls to refuse to pull the Article 50 trigger are increasing, with legal efforts within the UK directed to imposing pressure on Parliament, either as a result of the conduct of the referendum campaign, or a result of the rights affected by the withdrawal process, not to trigger Article 50. While this option might be constitutional as a matter of UK law, it would carry with it a multitude of social risks, furthering poisoning relationships between the political elite and the people, who may feel that the result of the referendum has been ignored.[9]

It would be far better for Parliament to accede to the will of the people, and trigger Article 50; but only once the Article 50 process has been clarified; and it is argued here that this should be via European Council guidelines relating to the process of negotiation. Parliament has a role in scrutinising these guidelines, and in providing full guidance to the government and the people in relation to the substantive content and scope of the negotiations, the negotiation timetable, and the steps to be taken in relation to the conclusion and ratification of the resulting agreement(s).

As has been argued above, it should be made clear that it is possible for the UK to rescind the Article 50 notification. The European Council should commit to negotiations with the UK in relation not only to a narrow withdrawal agreement, but also to a broader agreement on the future relationship between the UK and the EU. It is only if these two conditions are met – and it may be possible for the UK to exert not only political but also legal pressure on the European Council in relation to the content of the guidelines – that it is possible to envisage a legitimate outcome to this crisis.

The clarification of the uncertainty surrounding the Article 50 process will enable the UK to make an informed decision in relation to the pulling of the Article 50 trigger. The UK government must then work on its negotiating strategy, and seek to reach an agreement with the EU27 which deals with withdrawal and the future relationship between the UK and the EU. It is only during the process of negotiation that it will become clear what leaving the EU will actually entail. There will, presumably, be a range of difficult decisions, for example in relation to the UK’s desire to control immigration, and to retain access to the single market (and we will all learn a lot about the operation of the EEA, and Switzerland’s relationship with the EU); and about the acquired rights of EU citizens in the UK, and UK citizens in the EU. In the time period in which negotiations will occur, there will no doubt be significant economic and political change within both the EU and the UK. Towards the end of the negotiation period, it will be possible for the UK to make an informed choice; either a) to rescind its notification and remain within the EU, b) to accept the negotiated deal, or c) to exit the EU without a deal. That decision will be for the UK, in accordance with its constitutional requirements. Parliament will of course be involved, and consideration will no doubt be given to allowing the people to have a further say, either via a general election or indeed a second referendum.

The process of withdrawal is not going to be easy. The EU law framework surrounding the operation is very unclear, with the provision of guidelines by the European Council representing a key moment in which it is possible to contribute towards the legitimacy of that process. This paper offers a number of recommendations. It is to be hoped that it prompts careful consideration of the options ahead, so that it is possible to arrive at a legitimate outcome, in which the interests of citizens of the EU are, as far as possible protected.


[1] Nationals of the withdrawing State will, in principle, retain their positions in the EU institutions pending the entry into force of the withdrawal agreement. It is interesting in this regard that there seem to be no plans to replace Lord Hill, the UK Commissioner who resigned in the wake of the referendum result.

[2] It should noted that there may be complications in relation to the enforcement of EU law against the withdrawing Member State; whether before the Court of Justice, under Article 258-260, or before the national courts. See further below.

[3] House of Lords European Committee Report, n7 above at [58].

[4] It seems that Estonia, due to hold the Presidency in the first half of 2018, will assume the Presidency in the second half of 2017; see https://euobserver.com/political/134109.

[5] See Hillion, n4 above at 139-40.

[6] On the possibility of a turf war between the EU institutions, see Duff, n4 above.

[7] See Lazowski, n4 above at 528.

[8] See https://www.theguardian.com/law/2016/jul/03/parliament-must-decide-whether-or-not-to-leave-the-eu-say-lawyers and http://www.theguardian.com/politics/2016/jul/05/deadline-approaches-government-response-brexit-legal-challenge-article-50.  

[9] See also R Ekins, ‘The Legitimacy of the Brexit Referendum’, UK Constitutional Law Association Blog, available at https://ukconstitutionallaw.org/2016/06/29/richard-ekins-the-legitimacy-of-the-brexit-referendum/.