Brexit in the Supreme Court

27 Jan 2017

We now know the Government lost the re-match 8 – 3. You’ve seen the flash reports and heard the instant reactions so I’m taking you to the heart of what’s arguably the most important judicial decision on our constitution for a generation.  

It’s worth remembering that the principal question before the Court was not whether, but how, the UK may lawfully leave the EU; it’s about the legal mechanics of the exercise. 

To my eyes the judgement of the majority doesn’t just disagree with ministers’ assertion of a prerogative right to give notice under Article 50; it so comprehensively dismisses them that it’s not so much a defeat for the government as a rout. In fairness the government won on the devolution issues and perhaps that’s what drove it to what might otherwise have seemed a foolhardy exercise.

For me the key section of the Judgement is paragraphs 60 – 125 on pages 19 – 40.  Much of this is accessible and well worth reading but for now I limit myself to a few key passages, starting with paragraph 88:

In our Judgement, far from indicating that ministers had power to withdraw from the EU Treaties, the provisions of the 1972 Act, particularly when considered in the light of the unusual nature of those Treaties and the Act’s unusual legislative history, support the contrary view.  As the Divisional Court said, the long title of the 1972 Act stated that its purpose was to make provision in connection with the “enlargement” of what is now the European Union, which is not easy to reconcile with a prerogative power to achieve the opposite… In addition, there is the fact that the 1972 Act required ministers not to commit the United Kingdom to any new arrangement, whether it increased or decreased the potential volume and extent of EU law, without first being approved by Parliament… It would scarcely be compatible with those provisions if, in reliance on prerogative powers, ministers could unilaterally withdraw from the EU Treaties, thereby reducing the volume and extent of EU law which takes effect domestically to nil without the need for Parliamentary approval.

                The emphasis is mine. 

Then paragraph 90:

… before (i) signing and (ii) ratifying the 1972 Accession Treaty, ministers, acting internationally, waited for Parliament, acting domestically, (i) to give clear, if not legally binding, approval in the form of resolutions, and (ii) to enable the Treaty to be effective by passing the 1972 Act.  Bearing in mind this unique history and the constitutional principle of Parliamentary sovereignty, it seems most improbable that these two parties had the intention or expectation that ministers, constitutionally the junior partner in that exercise, could subsequently remove the graft without formal appropriate sanction from the constitutionally senior partner in that exercise, Parliament.

91. The improbability of the Secretary of State’s case is reinforced by the point that, if, as he contends, prerogative powers could be invoked in relation to the EU Treaties despite the provisions of the 1972 Act, it would have been open to ministers to take such a course on or at any time after 2 January 1973 without authorisation by Parliament.  It would also follow that ministers could have taken that course even if there had been no referendum or indeed, at least in theory, even if any referendum had resulted in a vote to remain.  Those are implausible propositions. 

That brings us to the referendum itself. The Court noted that the legislation ordering the 1975 and 2016 referendums on EU Membership is notably different from other referendum legislation by not making provision for the outcome. It also noted some confusion within the Executive about the nature of last year’s referendum but didn’t go into this because it’s a political not a legal issue.  The Court went on:

It was suggested on behalf of the Secretary of State that, having referred the question whether to leave or remain to the electorate, Parliament cannot have intended that, upon the electorate voting to leave, the same question would be referred back to it.  There are two problems with this argument.  The first is that it assumes what it seeks to prove, namely that the referendum was intended by Parliament to have a legal effect as well as a political effect. The second problem is that the notion that Parliament would not envisage both a referendum and legislation being required to approve the same step is falsified by sections 2, 3 and 6 of the 2011 Act, which, as the explanatory notes (quoted in para 111 above) acknowledge, require just that – albeit in the more elegant way of stipulating for legislation whose effectiveness was conditional upon a concurring vote in a referendum. 

The Court went on to say that where the authorising legislation doesn’t provide for change, that change must be made through Parliament because it’s the only available route. The Court also found it impossible to resist the temptation to remind the Government of its evidence to the House of Lords Select Committee on the Constitution in 2009 – 2010 namely:

… under the UK’s constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result. 

Of course there’s plenty more where that came from and some dissenting judgements. I particularly enjoy the views of Lord Reed (especially paragraph 177) and Lord Carnwath at paragraphs 247 (…lack of precedent is not a reason for inventing new principles…) and 259 (triggering Article 50 doesn’t change anything; it merely starts a process which will be scrutinised by Parliament).