by Ian Cram, School of Law, Leeds University
Sitting for the first time as a full 11 member panel, the United Kingdom’s Supreme Court has handed down its ruling in the most significant constitutional law case in the UK for over a generation.1 The ruling has been eagerly anticipated both in the UK, Europe and beyond and touches upon a range of major constitutional issues that will have significant legal and political implications. In headline terms, two features of the Supreme Court’s ruling stand out. First, by an 8-3 majority (and affirming the Divisional Court’s previous ruling), the Government is held unable to trigger the start of the Article 50 using its prerogative powers of treaty making and unmaking. An Act of Parliament will be required before the Government is properly authorised to commence exit negotiations with the European Commission. Second, and by a unanimous Court, the devolved administrations of Scotland , Wales and Northern Ireland have no legal entitlement to veto, or even be consulted over, the Westminster Parliament’s decision to trigger Article 50 negotiations.
This blog has four sections. In the first, a brief sketch of the political and legal background to to the Court’s decision is set down. Then the terms of the majority and minority rulings are described and analysed. As will become clear here, much of the forensic analysis hinges to an uncomfortable extent upon the interpretation of legislative gaps and ambiguities in our ‘unwritten’ constitution. The third, forward looking section asks (i) what we already know about how Mrs May’s Government intends to proceed and (ii) what political obstacles may lie in the way. A final section raises some broader issues about the weight accorded to referenda outcomes in a representative democracy such as the UK and the evident disconnect between popular opinion and political elites.
In 1972 the UK Parliament passed the European Communities Act which gave domestic effect to the membership agreement reached by the UK Government with the EEC (as it was then known). As a result of the 1972 Act, EU law became a dynamic source of domestic law, enjoying superior status to those parts of domestic law that are inconsistent with European law. Section 2 of the Act allows for the variable content of EU law to be directly imported into domestic law on an on-going basis as long as the UK remain part of the EU. As is widely known, the UK held a referendum on 23rd June 2016 in which citizens were asked ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ On a turnout of 72.2% of those entitled to vote, 51.9% voted to leave whilst 48.1% voted to remain. The regional breakdown of votes was as follows: England 53.4% (leave) – 46.6% remain); Scotland 38%-62%; Wales 52.5%-47.5%; Northern Ireland 44.2%-55.8%. The result prompted the resignation of Prime Minister Cameron who had campaigned with majority of his Cabinet for a Remain vote. His successor, Theresa May (and a Remain supporter), became Prime Minister in mid July 2016 with a vow to implement the verdict of the UK electorate. The applicants challenged the Government’s proposed use of the Crown’s ancient treaty-making/unmaking (prerogative) powers to notify the European Council of its decision to withdraw from the European Union by means of an Article 50 notice. They argued that Article 50 notification could only be given after Parliament had expressly authorised the Government in an Act of Parliament. A unanimous Divisional Court agreed with the applicants.2 The effect of an Article 50 notification was to ‘switch off’ EU rights for citizens at the end of the two year period provided or negotiations. It was by no means clear however that, in passing the 1972 European Communities Act, Parliament had intended to allow the Executive to fall back on its prerogative powers (that is without further recourse to Parliament) to switch off such rights. The ruling was greeted with robust condemnation in the mainly Leave supporting sections of the tabloid press. In turn, Remain supporters (including some prominent academic lawyers) evoked sentiments more suited to a bygone era when ‘scandalising the court’ was a common law offence. Media outlets were thus somewhat fancifully accused of undermining the rule of law. In truth however there was never any suggestion that the front pages of The Daily Mail or The Sun possessed the power to raze the edifice of English judicial administration. A better response to the criticism of the Divisional Court would have recognised the vitality in a democracy of holding judges to close and exacting scrutiny, after all, as senior public office holders, Supreme Court Justices wield significant constitutional power.
In the meantime, Government lawyers appealed to the UK Supreme Court which over four days in December 2016 heard submissions from the parties, including, for the first time, lawyers representing the UK’s devolved administrations.
ii) The ruling
Two preliminary points can be made before analysing the Supreme Court’s ruling in detail. First, the UK takes a dualist approach to rights and obligations arising out of treaties and other norms derived from international law. That is to say, without an Act of Parliament to incorporate them into domestic law, such rights etc. may not be enforced in UK courts.
Second, the Court proceeds from the assumption that, once given, an Article 50 notification cannot be withdrawn. This means that certain rights enjoyed by EU citizens under EU law (such as residence, non-discrimination etc.) will cease to exist in domestic law at the expiry of two years from the date (in the absence of an exceptional extension of the 2 year period as stipulated by Art 50(3)).
In essence the judgment addresses two main points of argument. Was the Government able to rely on its prerogative powers to trigger the start of Article 50 negotiations without need for further legislative authorisation? Were consents from the devolved administrations in Scotland, Wales and Northern Ireland additionally needed before the Government could commence negotiations? Each point is now taken in turn.
a) Prerogative vs statute based powers to trigger Article 50
Here the issue of interpreting legislative silence looms large. Ought the European Communities Act 1972 to be read as implicitly excluding the power of the Government to use its prerogative powers of treaty making/unmaking to alter the EU rights of residents of the UK? Or, alternatively, does the fact that Parliament chose not to limit in express terms the Government’s prerogative power of treaty making meant that Parliament was content (until it legislated to the contrary) to let the Executive use its prerogative powers in ways that might affect UK residents’ EU rights?
The majority judgment (set out in the speech of Lord Neuberger President of the Supreme Court) fixes upon the absence of an express authorisation in the 1972 Act enabling the Ministers to withdraw from the EU treaties (and thereby removing the domestic rights of UK residents that derive from EU law). This absence means that fresh parliamentary authority is needed for the commencement of the exit process. Parliament in 1972 could not be read as having implicitly authorised the Government to withdraw from EU Treaties using prerogative powers. This analysis is supported by common law principle of legality (see R v Secy of State for Home Department ex parte Simms  2 AC 115, 131) which requires clear words of enactment before fundamental rights can be diminished. If this analysis is correct, then it is not open to the Government to circumvent the absence of express authorisation in the 1972 Act via resort to ancient prerogative powers. As a matter of constitutional principle, such far-reaching constitutional change could only be lawfully secured through express legislative authorisation.
The minority judgment (Lord Reed, joined by Lord Hughes and Lord Carnwarth) takes the position that Parliament’s silence in 1972 on the termination of EU membership sometime in the future ought to be read as the legislature having deliberately chosen not to rule out the possibility of a future withdrawal from the EU treaties by the Government under its prerogative powers. If rights under EU law are revoked after treaty withdrawal, this is not therefore a consequence of Crown prerogative power, rather it is to be viewed as having occurred via the implicit parliamentary authorisation of the prerogative in the 1972 Act. The minority further argued that Article 50 notification by itself (as opposed to the actual expiry of membership) does not in any case alter domestic law, nor does it prevent Parliament prior to the expiry of the two year period choosing to enact laws to safeguard whichever EU-derived rights it wishes.
(b) Article 50 and the position of devolved administrations
The Court was unanimous on the legal position of the devolved administrations of Scotland, Wales and Northern Ireland who had claimed that the statutory recognition of the Sewel Convention meant that the approval of those administrations to an Article 50 notice of withdrawal was legally enforceable (see in the case of Scotland s.2 of the Scotland Act 2016 that states the Westminster Parliament ‘will not normally legislate with regard to devolved matters without the consent’ of the Scottish Parliament). Conventions, even where, recognised formally by statute, remain outside the remit of the judiciary. Any attempt to enforce a convention in the courts (even when given statutory form) would embroil the Courts in hotly contested political matters into which the Court could not be drawn. Judges ‘are neither the parents nor the guardians of political conventions: they are merely ‘observers’ (para 146). Had the Court ruled otherwise, it is probably fair to say that Article 50 would not have been triggered, there being no prospect of the Scottish Nationalists in Holyrood agreeing to commence the process. In this way, the Court has prevented a constituent nation of the UK from exercising a permanent block over the UK-wide majority that wishes to exit the EU.
Withdrawal from the EU will of course enhance the legal competences of the devolved administrations since they will be freed up to make laws in non-reserved matters without having to observe EU constraints. Any EU rights conferred on citizens in the devolved areas via the 1972 Act and devolution settlements would require (on the majority view) to be removed by the Act of Parliament authorising the Government to give notice under Article 50. The Court pointed to the fact that there was nothing in the various devolution Acts to insist that the UK remains a member of the EU. On the contrary, those very Acts make clear that relations between the UK and the EU are a matter expressly reserved for the UK Parliament at Westminster. As may have been predicted, the Court’s decision has prompted fresh calls for a second independence referendum in Scotland among nationalists barely two years on from the pro-Union vote (55%-45%) in September 2014.
(iii) The political path ahead – opportunities and obstacles
The Supreme Court majority was careful not to lay down requirements about the type of legislation that Parliament needed to enact to authorise the Executive. This stands in contrast to the Deputy President Lady Hale’s extra judicial remarks made to lawyers in Malaysia in November 2016 prior to Supreme Court hearing.3 In a question and answer session, she appeared at some point to presume that Government was going to lose its appeal in the Supreme Court and openly speculated on whether ‘it would be enough for a simple Act of Parliament to authorise the government to give notice or whether it would to be a comprehensive replacement of the 1972 Act.’4 Not only did this cause Leave supporters to raise doubts about her impartiality, some were left wondering if she had temporarily forgotten about Article 9 of the Bill of Rights which prevents proceedings in Parliament from being ‘impeached or questioned in any court or place out of Parliament.’
The European Union (Notification of withdrawal) Bill was introduced to the Commons on 26th January. The Bill is timetabled to have completed its Commons’ stages by February 8th and will at this point go to the House of Lords for consideration.5 The Labour Party (minus some Remain MPs in its ranks) has indicated its willingness to support this Bill but will put down an amendment requiring the Government to give regular reports (no less than every two months) about the progress of negotiations. Scottish Nationalist MPs sitting in the Westminster Parliament and Liberal Democrat MPs will in all likelihood vote against the Government Bill. Perhaps a more interesting phase of the Bill’s parliamentary passage will occur in the House of Lords where Conservative peers do not have a majority. The potential there for a combination of Remain supporters across the Labour, Liberal Democrat and Crossbench peers to cause legislative mischief cannot at this stage be ruled out. Assuming the Bill becomes law, a ‘Great Repeal’ Bill is promised towards the end of the two year negotiating period which will remove the European Communities Act 1972 from the statute book and reveal which domestic laws deriving from the UK’s membership of the EU are to remain in force and which are to be scrapped.
(iv) Stepping back – representation, participation and distrust
Among the general population, the Brexit litigation has surprised and frustrated Leave voters who believed that the result on June 23 gave a clear instruction to the Executive to commence the process by which the majority position was to be implemented. A section of ‘Leavers’ suspected not without good reason that the involvement of lawyers and courts is a tactic by ‘Remainers’ in a longer term strategy intended to derail the UK’s exit from the EU. After all, during the referendum campaign itself, leading politicians on both sides of the argument agreed that the will of the majority would be conclusive. Lord Neuberger, President of the Supreme Court described the referendum as having ‘great political significance’ whilst noting that this was entirely distinct from any legal import. As a matter of law he observed, the European Union Referendum Act 2015 pointedly did not specify that the outcome was to bind the hands of Parliament and the Executive. Had it done so, the applicants’ legal arguments would have been fatally undermined. (Of course, even if the legislation had included such a mandatory provision as s.8 of the Parliamentary Voting System and Constituencies Act 2011 had previously done, a later Parliament could have expressly repealed the section – in legal theory at least).
Even if one believes that referendums are flawed mechanisms of political decision-making and open to manipulation by political elites, to suggest as the Supreme Court majority has done, that the outcome on June 23 2016 (i) has scant legal relevance and (ii) that Parliament (which includes a partly hereditary and wholly unelected Upper Chamber) might in law be free to disregard the wishes of the people raises a vital issue. As the Supreme Court of Canada observed in the Quebec Secession case  2 SCR 217 – the question is surely whether a constitutional order can remain indifferent to the clear expression of majority opinion and insist that other constitutional principles necessarily trump popular opinion? For those disappointed by the sporadic resort to participatory and deliberative constitutional mechanisms in modern democracies and concerned by rising levels of distrust in national and supra-national political elites, the Supreme Court majority’s position that a partially representative/partially appointed/hereditary legislature might in law frustrate the expression of the popular will is disturbing. In contrast, the minority’s conclusion that the Executive was free without further parliamentary involvement to notify the European Council under Article 50 avoids this conclusion. As Lord Reed noted in the leading dissent, in passing the European Union Referendum Act 2015 Parliament gave itself no further role in the process of withdrawal. It plainly could have insisted by means of a provision in the Act that the legislature was to authorise the issuing of an Article 50 notice but chose not to. This accords with the popular understanding of what happened on June 23, including it is worth stating among sections of Remain supporters.
2. R (on application of Miller & Dos Santos) v Secretary of State for Exiting the EU  EWHC 2768
5. The House of Commons passed a motion by a large majority of MPs last month calling on the Government to trigger Article 50 by March 2017.