Brexit has its day in court!

The third day of November 2016 was an historic day for parliamentary democracy. It was a day on which an investment fund manager and a hairdresser (“the claimants”) took on the might of the UK government (“the defendant”) in the High Court and won. It was an unanimous 3:0 victory!

Before discussing the case (“the Brexit case”), it is worthwhile discussing the background to the case. The Brexit case would never had eventuated but for the government’s decision not to call on the parliament to consider the referendum result and vote on whether or not to trigger Brexit. And why the government did not do that is unexplained and surprising given that the Referendum Bill which parliament enacted to authorise the referendum was accompanied by a briefing paper to members of parliament informing them that the referendum was advisory only. The referendum was not intended to and did not legally bind the parliament or the government to the outcome of the referendum. And clearly that is still the case today.

Given the advisory nature of the referendum, then it is unclear why prime minister Cameron resigned and prime minister May is insisting that “Brexit means Brexit!” Experts agree that the Leave vote narrowly won because there was disquiet among the elderly voters as to the EU’s policy on border control. On one view, and from a political perspective rather than a legal perspective, the referendum gave the government and parliament the advice they requested from the electorate and the result gave them the additional thrust to ramp up the pressure on the EU Commission over the issue of border control. However, in what was seemingly a knee-jerk reaction to an unexpected result, the government accepted that advisory referendum result as though it had the binding effect of a general election result. Something is clearly amiss in the government’s Brexit narrative!

Turning to the Brexit case. To answer the question of whether the government has the power to trigger Brexit, the High Court principally considered the European Communities Act 1972 (“the ECA 1972”), which is a statute enacted by the UK parliament in 1972 bringing into domestic law the rights and obligations of the European treaties. They considered the Treaty of European Union (“TEU”), an EU treaty that in 2009 brought into force Article 50 (“art 50”), the article which governs the withdrawal of a member state from the EU. And the High Court also considered relevant cases which have already interpreted and established the meaning of many aspects of constitutional law.

What is novel about the Brexit case is that a UK court has never before considered a matter dealing with the UK withdrawing from the EU, and because the UK has never before considered withdrawing from the EU. Also, there is no precedent in EU law where a member state has invoked art 50 so as to withdraw from the EU. And finally, there is uncertainty in UK constitutional law as to the roles to be played by parliament and government in Brexit.

The case was heard in the High Court (Administrative Court) before an esteemed bench of three judges which included the first and second highest ranking judges in the UK court system, the Lord Chief Justice and Master of the Rolls, and a Lord Justice. The reasoning of the High Court was impeccable and supported by unquestionable case authority and there was no dissenting or separate judgements. All of which is an ominous sign for the government if the matter is appealed to the Supreme Court.

To appreciate the dynamics of the case, it will assist to first become familiar with the three forms of power which are the prime elements in the UK’s system of constitutional democracy. Constitutional democracy is a system of three types of power: constitutional power, executive power and judicial power. And although the powers are separate, they form a cohesive whole so as to operate as a system. Constitutional power is vested in parliament and it is supreme power. It enables parliament to perform its role of enacting, amending and repealing laws and thereby altering the state of rights and obligations throughout the UK. Executive power is vested in the executive government (“the government”) and it is secondary power. The government is subordinate to and yet separate from parliament. Upon the command of parliament, the government exercises its executive power to perform its role of creating, amending and removing policy so as to implement the laws enacted, amended and repealed by parliament. And then there is judicial power and it is vested in the courts. The courts exercise their judicial power to interpret and apply the law in all its forms, for example constitutional law, civil law and criminal law.

In the Brexit case we see all three powers at work. The claimants requested the High Court to exercise its judicial power to determine whether under UK constitutional law triggering Brexit (art 50) requires an exercise of constitutional power or executive power. Herein lies the strength of the system of parliamentary democracy because the judiciary is independent of parliament and government and it alone has power to make judicial decisions which it can do objectively, void of fear or favour. And that is precisely what the High Court did in the Brexit case. The High Court having reviewed the law, treaties and cases determined that under constitutional law parliament and not government has the power to trigger art 50, if and when it chooses to do so.

In arguing its case, the government contended that its ‘royal prerogative’, which forms part of its executive powers, gives it power to deal with treaties and because the TEU is a treaty, the government thereby has the power to trigger art 50 of that treaty so as to commence Brexit. The royal prerogative is a relic from the days when supreme power was vested in the royals and amounts to a body of customs, immunities and privileges which support many executive powers.

Although the High Court acknowledged that the government’s royal prerogative gave it power to deal with treaties, the High Court held that the royal prerogative did not extend to the power to trigger art 50, although it is an article in a treaty, because the effect of triggering art 50 is to change the state of laws, rights and privileges and the power required to do that is vested in parliament. And the High Court found that there was nothing in the ECA 1972 to suggest that parliament had delegated that power to the government.

The High Court also found that if the government triggered art 50 and given that the notice to withdraw could not be revoked, then the government would in effect diminish or remove power from parliament and that would clearly be unconstitutional. And so, in practical terms the government would in effect deprive parliament of its power to reject the terms negotiated by the government with the EU Commission.

And so where to from here for the government? The government has a choice, it can respectfully accept the High Court’s unanimous decision or seek permission from the court to appeal the decision to the Supreme Court. Whether permission to appeal will be granted to the government is an open question. And if the government is granted an appeal to the Supreme Court and the government loses its appeal, then on one view the government’s position is untenable.

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This post was written by Mark Horner