The High Court judgment: keep calm and carry on…

The High Court judgment in the Miller case, that notification under Article 50 of the TEU of the UK’s intention to leave the EU cannot be given under the royal prerogative, has attracted intense comment, some of it vituperative and directed at those who gave the judgment rather than the judgment itself.  As I have already tweeted, if you believe (as I do) that the judgment is flawed, you should identify the flaws – not attack the judges.  We are fortunate in the quality of our judiciary and the judges who gave the judgment are rightly among the most eminent.

I am not sure I shall add much to existing commentaries on the case, but here – for what they are worth – are my observations:

This situation could have been avoided.  The fact that the case has arisen is in many respects the consequence of the rush to hold a referendum and not giving adequate thought to possible consequences.  Debate on the EU Referendum Bill focused on issues such as the franchise and the period of official purdah.  I have made the point before that in my Second Reading speech in the Lords, I raised the issue of thresholds.  I also raised the point that it was an advisory referendum.  The minister replying seemed to think that referendums were necessarily advisory, even though I made mention of the fact that Parliament had provided that the 2011 referendum on AV was binding.  Ministers made clear that the Government was committed to implementing the outcome of the EU referendum, whatever it was – there was a manifesto commitment – but made no move to provide in the Bill that if there was a ‘leave’ vote, then notification under Article 50 would be given.  Had such a provision been included, there would have been no court case.

Many speeches in the debate on the Bill, not least in the Lords, focused more on the merits of staying in or leaving the EU rather than on the provisions of the Bill.  As I have pointed out before, institutions and processes are not neutral in their effect, and the Miller case was the consequence of the particular process stipulated by Parliament.  The Bill was as important for its silences as for its particular provisions.

It is about means and not ends.  To go by some media coverage, one would think the High Court had ruled on the merits of EU membership or said that Brexit cannot go ahead.  As it made clear, it was purely concerned with a matter of law.  The issue was not about the merits of leaving the EU, but the means by which that was to be achieved.  The court held that notification could not be given under prerogative powers.  The referendum provided a majority for leaving the EU and Parliament is unlikely to go against that outcome.  (That’s my observation, not the court’s.)  The court quoted Dicey on parliamentary sovereignty, but as Dicey observed, ‘we may assert that the arrangements of the constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country’.  (Adding, ‘But this a political, not a legal fact.’)  Furthermore, the case is to be appealed to the Supreme Court.  We need therefore to await the outcome of that appeal.  In short, the media response is totally over the top, as hysterical as it is ill-informed.

The judgment is flawed.  I believe the reasoning of the court is mistaken and is in several respects.  The court proceeded on the basis – accepted by the parties to the case – that notification under Article 50 is irrevocable.  There is nothing in Article 50 to this effect and Paul Craig has argued that the natural textual meaning of Article 50(3) is that a state could decide to change its mind and withdraw from the exit negotiation.  The judgment also accepts the argument that rights created for citizens cannot be taken away by prerogative powers.  As the European Communities Act 1972 created rights, these cannot be removed other than by Parliament.  As Adam Tomkins has noted, this is a judge-based doctrine that did not exist at the time of the 1972 Act.  Furthermore, and this is the core point, the rights, as John Finnis has argued, are treaty-based UK rights and not ‘statutory rights enacted by Parliament’.  Rights created under EU law as it stands ‘from time to time’ can be modified or even removed by the EU, entailing no restraint or authorisation by Parliament.

Even if one disagrees with Professor Finnis’ argument, it is one that needs to be addressed.  The court does not really engage with the Finnis argument, but rather proceeds by accepting that EU law rights are rights enacted Parliament.  (Read in the light of Finnis’ argument, much of the discussion of rights in the judgment loses its force, and as Carl Gardner has argued, the body of rights involved is not as extensive as the court argues.)  The court instead proceeds on the basis of a judicially identified category of statute – ‘a constitutional statute’ – and, having drawn on this concept then concludes that Parliament in 1972 intended that the European Communities Act should be such a statute.  It then goes on, at paragraph 82, to assert: ‘Statutory interpretation, particularly of a constitutional statute which the ECA is for the reasons given at paragraph 43-44, must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislation by legislating in the terms that it did’.  In effect, perceived intent is being built on perceived intent.  We thus have a constitutional statute, background constitutional principles, with those principles to inform the inferences to be de drawn as to what Parliament intended.

The High Court in ex p. Rees-Mogg in 1994 held that ‘When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms, such as one finds in section 6 of the [Parliamentary Elections] Act of 1978.’  The court in Miller argues that this did not provide guidance in the present case as in that case the court did not have to consider whether the Crown’s prerogative powers had been unaffected by the ECA and the present case deals with withdrawal from the relevant EU treaties.  Having decided that the case was not relevant, in then goes on to say that ‘we consider that it is clear’ that Parliament in 1972 intended to legislate so as to introduce EU law into domestic law in such a way that could not be undone by the exercise of Crown prerogative power (para. 92).  It is clear to the court because of the reasoning it has adopted.  That reasoning, though, is in my view, as I have indicated, built on contestable foundations and rather stretched reasoning.  There is solid ground for stating that Parliament intended to legislate so as to give effect to EU law, created under the treaties from time to time, into domestic law, but it does not follow that it intended to do so in such a way that could not be undone by the exercise of the Crown prerogative.

The court was unanimous and robust in expressing its judgment.  However, the judgment is, in my view, for the reasons summarised above, open to challenge.  In saying that, I am not going beyond what some distinguished legal scholars have said (not least in the collection of comments in the Policy  Exchange’s Judicial Power Project collection), but simply adding my voice in support of their arguments.