Brexit in court

• The Divisional Court heard arguments over three days as to whether the government can use the royal prerogative to trigger Art 50 of the Lisbon Treaty thereby threatening loss of important statutory EU rights.

The Brexit court case (Santos and M v Secretary of State for Exiting the European Union) is unusual because of its political and constitutional significance. It is also unusual (or, query, unique) because at public expense a transcript of the proceedings was made accessible online within a short time of each morning and afternoon session. The transcript of the three days of oral argument runs to 586 online pages.

Critical contentions

Reading the oral argument with all the judicial interventions offers the opportunity of hazarding an opinion as to what are likely to be the critical contentions the judges will consider when coming to their decision.

The claimants asked the Divisional Court for a declaration by way of judicial review. As amended, the requested declaration was simply that the executive is not entitled to trigger Art 50 of the Treaty on European Union to start withdrawal from the EU. The words “without an Act of Parliament authorising such notification” were removed by the claimants to meet the objection that they trespassed on parliamentary sensibility.

The case was heard by Lord Thomas, Lord Chief Justice, Sir Terence Etherton, Master of the Rolls and Lord Justice Sales. No fewer than 17 barristers appeared for the two sets of claimants, the two sets of interested parties and one set of intervenors. Five barristers, led by the Attorney General, appeared for the government.

In agreement

There were a number of important matters on which the parties were agreed:

1. Notice of intention to withdraw from the EU under Art 50 once given cannot be withdrawn. Triggering Art 50, as Lord Pannick put it for the claimants, was like firing a bullet which would inevitably reach its target by withdrawal after two years, unless all 27 other member states agreed on an extension
2. Notification under Art 50 cannot be made conditionally, for instance, subject to parliamentary approval.
3. There were three categories of rights at issue. Category 1 rights, consisting of any EU rights already enshrined in UK domestic law. These would not be affected by notification under Art 50. Category 2 rights, such as the freedom to live and work anywhere in the EU. These might or might not be restored as part of an eventual negotiated deal between the UK and the EU, but, by definition, they would be rights under new arrangements. Category 3 rights, such as the right to vote for an MEP or to have a matter decided by the European Court of Justice, or to have a complaint considered by the EU Commission. These would be lost irretrievably.
4. The 23 June referendum was purely advisory and therefore had no legally binding effect.
5. The case brought by the claimants was justiciable.

In disagreement

Lord Pannick QC for the claimants said that pulling the trigger by giving notification under Art 50 would inevitably have consequences. “[O]nce you have pulled the trigger, the consequence follows. The bullet hits the target. It hits the target on the date specified in Art 50(3). The triggering leads to the consequence, inevitably leads to the consequence, as a matter of law, that the treaties cease to apply and that has a dramatic impact in domestic law. This is not simply action on the international plane. The notification has an impact in domestic law, because of the unique characteristics of the European Communities Act” (Transcript, 13 October, p 19).

The essential difference between the two sides was as to whether the royal prerogative does or does not extend to taking an action that would result in loss of Category 2 and Category 3 statutory rights. A great number of relevant judicial authorities were cited but the outcome of the case will not be determined by the authorities. There are plenty of authorities that will support the decision whichever way it goes.

What will probably be decisive is which way the judges approach the topic. “Is it for us to show that there is something in the legislation which restricts the power of the defendant to act, or is the true analysis, as we contend, that the defendant is acting to remove statutory rights and therefore he, the defendant, must show that Parliament has clearly authorised him so to act. That is really the dispute” (Lord Pannick QC, Transcript, 18 October, pp109-110).

The Attorney General said that triggering Art 50 was the logical and anticipated consequence of the 23 June vote favouring Leave: “It is clear in our submission that Parliament legislated against the background of an established legal principle that withdrawing from a treaty is a matter for the executive and a proper use of the prerogative; and in the clear knowledge of the government's expressly stated and wholly unsurprising intent to act without further legislative stage, to implement the result of the referendum if there was a leave vote.” (Transcript, 17 October, p 68)

The claimants argued that the question was not whether the decision to implement the referendum result was reasonable but whether the executive had the legal power to do so without statutory authority.

The government argued that the executive could act to trigger Art 50 unless there was a statutory bar—which there was not. The European Union (Amendment) Act 2008 which incorporated the Lisbon Treaty, the European Union Act 2011 and the European Union Referendum Act 2015 all dealt with aspects of the UK’s relationship with the EU. The 2008 and 2011 Acts required parliamentary approval for changes involving increased EU powers. The 2015 Act provided for the referendum. Significantly, none of the three acts had any provision requiring parliamentary approval for triggering Art 50. The absence of any requirement of parliamentary approval in the form of a statute or even just a vote, showed that Parliament was content to leave it to the executive acting under the royal prerogative.

The argument for the claimants was that withdrawal from the EU detrimentally affected a variety of important rights created by statute which, unless Parliament had expressly indicated otherwise, could only be achieved by statute. Use of the royal prerogative could not achieve the result. Even votes in both Houses would not suffice—a mere motion could not abrogate rights passed by Parliament. Ancient and modern authorities established that there had to be a statute. (“Just as the prerogative power cannot create domestic law rights or duties, so equally it cannot be used to defeat domestic law rights, by which I mean statutory right” (Lord Pannick QC, Transcript, 18 October, p 73).)

An obvious difficulty with the government’s position, pointed out by the judges, was that if the absence of a requirement of parliamentary approval for triggering Art 50 in the 2011 and 2015 Acts showed that parliament was content to leave the matter to the executive, it followed logically that the government would have been able to use the royal prerogative to trigger Art 50 without either a referendum or even any kind of parliamentary approval.

As Mr D Chambers QC for the claimants put it: “The prime minister could simply have woken up one morning and without more, decided out of nowhere to withdraw from the EU. No referendum, nothing. Now, we submit that cannot be right” (Transcript, 18 October, p 121). Mr J. Eadie QC for the government had earlier accepted that the point was valid and conceded that it would amount to “a constitutional deficit” (Transcript, 17 October, p 197).

On the last morning Mr Eadie said that the government’s proposed, so-called Great Reform Bill would give Parliament the opportunity to determine which of EU laws and regulations should be kept and what should be rejected. Also, if there were a withdrawal agreement with the EU, it would likely be in the form of a treaty requiring ratification, in which case Parliament would have the power to reject the agreement. The claimants were wrong therefore to suggest that triggering Art 50 by the executive excluded parliamentary approval. The Lord Chief Justice summarised the point: “But the fundamental answer is that actually at the end of the day, if there is to be a negotiated agreement, subject to ratification, it would be up to Parliament to say yes or no” (Transcript, 18 October, p 27).

Replying, Lord Pannick said: (i) there might not be a withdrawal agreement; or (ii) it might not be one requiring ratification; and (iii) even if there were a treaty requiring ratification, under Art 50, if Parliament rejected such a withdrawal agreement, the UK would still be out of the EU—without an agreement. He suggested the argument did not touch the issues before the court.

Taking time

At the conclusion of oral argument stretching over some 15 hours, the Lord Chief Justice said: “We shall take time to consider the matter and give our judgments as quickly as possible.” 

Whatever the result, the case will go on appeal to the Supreme Court for a hearing already scheduled for December.

Michael Zander QC is Emeritus Professor, LSE