I. Law not politics
Writing before the ink is dry on the High Court’s judgment in the Brexit judicial review case R (Miller) may be thought foolish. It will be easy to mistake its significance. It is easy too to rush to judgment (as others who should know better have) and castigate the judges for attempting to frustrate the will of the 17 million electors who voted to leave the EU. Others, with different politics, hail the judges for their wisdom in throwing a spanner into the Brexit works. Both these extremes are mistaken; they mistake law for politics. This paper will try to see beyond the surface politics and present an initial grappling with the legal and constitutional principles involved. It will argue that the court’s judgment, while powerful and orthodox, is vulnerable on appeal to the Supreme Court. Several of the Government’s best points were either conceded or not properly argued in the High Court. Some at least of these unraised, or silent, issues may well dominate the appeal to the Supreme Court.
But first some politics: one can say unequivocally that the case is politically important. If not overturned on appeal, it will profoundly affect the path to Brexit, making it more difficult and complicated. It is easy to envisage the legislation designed to authorise notification under article 50(2) of the Treaty on European Union running into difficulty in the House of Lords. Would the unelected Lords dare to frustrate the will of the people expressed in the referendum? Driving the legislation through using the Parliament Acts 1911-49 would entail further damaging delay. If the small detail of the Fixed-Term of Parliament Act 2011 is overcome, an early general election may tempt as a means of securing a strong mandate for Brexit that the Lords could not resist. Politically interesting times flow from this decision.
That the decision has politically difficult consequences is not, without more, any indication that the judges have overreached themselves. Judges have to decide the cases that litigants place before them. On taking office they swear an oath to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”. This surely must mean that they must decide according to their understanding of the law irrespective of the political consequences. Fiat justicia ruat caelum (‘Let justice be done though the heavens fall’). That is the essence of their independence. Judicial decisions should be assessed for the quality of their reasoning not for the convenience of their outcome.
II. The fundamental and uncontroversial principles
The fundamental point that frames this assessment of the case is this: while there may be criticisms to make of the application by the court of the legal principles involved, those principles were themselves uncontroversial and orthodox. The first of these is the court’s unequivocal and unconditional acceptance of the sovereignty of Parliament. Dicey’s famous dictum that Parliamentary sovereignty means that Parliament has “the right to make or unmake any law whatever; and, further that no body or person is recognised by the law …as having a right to override or set aside legislation of Parliament” is cited with approval (para 22) as is Lord Bingham’s remark in Jackson  UKHL 56, para 9 that “the bedrock of the British constitution is…the supremacy of the Crown in Parliament”. The wayward dicta uttered by a minority of the judges in Jackson who toyed with the idea that the courts might strike down a statute if the judges considered that it undermined an important constitutional principle are simply not mentioned.
Equally fundamental and uncontroversial – indeed it is a consequence of the supremacy of Parliament – is the principle that statute trumps prerogative powers or in the court’s words “primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers”(para 25). So the executive (or Crown) cannot override or diminish a right granted by statute. A word should be added on the meaning of prerogative powers. These are not arcane and mysterious powers, but are simply the common law powers of the Crown. Generally exercised by ministers they are in everyday use in many parts of the constitution. The Government is accountable to Parliament for their exercise and if justiciable they are subject to judicial review.
In particular, it is uncontroversial, as the judges say, that the “conduct of international relations and the making and unmaking of treaties…are regarded as matters for the Crown in the exercise of prerogative powers” (para 30). This works well as far as many treaties are concerned since they consist purely of agreements between states and no question of changing or diminishing any rights in domestic law arise. Prerogative powers are all that are required. But when the UK undertakes in a treaty to make a change in its domestic law granting certain rights to individuals legislation is needed to make the necessary changes to domestic law. Should the UK subsequently decide to withdraw from that treaty it may do so in the exercise of its prerogative powers, but legislation would be needed to remove the rights previously granted in domestic law.
The general rule is summed up by the court in these words: “By making and unmaking treaties the Crown creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law. It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights.” (para 32).
III. The EU: the giver of rights
Where it begins to become difficult is with the EU treaties. They are not as other treaties. Although they are agreements between the member states they extend rights to individuals in a variety of ways too numerous to recite here. But these rights change all the time at the behest of the EU legislative (and judicial!) authorities. The UK is bound by the EU Treaties to give effect to these rights and it does so by domestic legislation. The relevant provision is section 2(1) of the European Communities Act 1972 (ECA 1972) which provides: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly…”.
Now comes the crunch. The giving of notice in terms of article 50(2) would commence a process which would culminate in the release of the UK from its obligations under the treaties. And the individual rights under the Treaties would no longer be “provided for by or under the Treaties” and so would no longer take effect. Since the power to give notice in terms of article 50(2) is, on the government’s case, a prerogative power we have the prerogative removing rights apparently granted by section 2(1).
At first glance, this seems contrary to the fundamental principles discussed above. And indeed the court concluded “we consider that it is clear that Parliament intended to legislate by that Act [ECA 1972] so as to introduce EU law into domestic law…in such a way that this could not be undone by exercise of Crown prerogative power. With the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend…The Crown therefore has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU.” (para 92). But is the court discerning what Parliament in truth intended or simply announcing its conclusion?
IV. Professor Finnis’s criticism
There are powerful reasons to doubt the court’s conclusion, not because the relevant principles are controversial but because they have not been correctly applied. The most penetrating criticism I have seen of the way the principles have been applied comes from two short papers on this site by Professor John Finnis. (See here and here). His central point is that: “rights acquired by virtue of s. 2(1) ECA are not ‘statutory rights enacted by Parliament’. They are rights under the treaty law we call EU law, as it stands ‘from time to time’. They are thus subjected to alteration by decisions made in the international realm by EU or EU-related bodies and processes, in which the Crown participates by exercise of its prerogative, for the most part without restraint or pre-authorization by Parliament, let alone by statute. So there are two necessary conditions for the existence, effect and operation of these treaty-based UK rights as rights – yes, ‘statutory rights’ – in UK law. One is that they be rights from time to time created or arising by or under the Treaties. The other is the silent operation of s. 2(1) ECA. The latter necessary condition does not suffice to sustain them as treaty-based UK statutory rights if they cease to be in effect in or under the Treaties, by virtue of something done to or under the Treaties – often something done entirely without pre-authorization, or indeed any authorization, by the UK Parliament.”
V. The sounds of silence
If Professor Finnis is right the case is wrongly decided. And he makes a strong argument – drawing analogies with the operation of double taxation agreements – that needs to be answered. The curious point is this (and it is what seems to have prompted Professor Finnis to write the papers in question): in oral argument counsel for the claimant in reply was effectively unchallenged when he a couple of dozen times put forward (what Professor Finnis terms) the “glaringly fallacious syllogism” that “(1) statutory rights enacted by Parliament cannot be destroyed (removed, defeated, etc.) by executive action without Parliamentary statute [or authorization]; (2) the myriad rights acquired by UK persons under the Treaties given effect in the UK by s. 2(1) ECA 1972 are statutory rights enacted by Parliament; (3) therefore no executive action can be taken to terminate the UK’s adherence to those Treaties without authorization by statute [or other parliamentary authorization].”
The crucial point for decision, which the High Court did not address, is thus whether EU rights which take effect “from time to time” in terms of section 2(1) are statutory rights enacted by Parliament (and so only removable by Parliament).
In any appeal the point made out in Professor Finnis’s critique will surely have to receive more attention than it did at first instance and it may well carry the day for the government. The curiosity is that so little consideration was given to it at first instance. But it is in fact just the first of several issues on which there is silence, or near silence.
For instance, the government accepted that notice under article 50 cannot be withdrawn. But there is a respectable case to be made for the opposite proposition. Aurel Sari makes a strong case here. If the article 50 notice could be withdrawn the current case would be transformed. (As well as the UK’s negotiating position with the other Member States.) But ultimately this is a question of EU Law; and the silence is probably to avoid an entanglement with the CJEU!
A further issue on which there was silence was whether the decision to notify was justiciable at all. The government conceded that the question raised in the case was “one for the courts to decide” (para 2), so this question was not further considered. But treaty negotiations (and decisions to withdraw from treaty obligations) are in fact typical examples of non-justiciable exercises of the prerogative.
Another issue on which there was relative silence was the status of the European Union Referendum Act 2015, which authorised the referendum. Once more the government conceded that neither that Act nor any other conferred on it statutory authority to give notice under Article 50. It relied only on the prerogative. This is the root of the contention that the referendum was “only advisory”. Any other contention said the court was “untenable” (para 105).
Some of these silences may form the basis of the appeal to the Supreme Court.
VI. The significance of the referendum result: an alternative analysis
In one sense it is undeniable that the referendum result is “only advisory”. Since we have a sovereign Parliament that can make or unmake any law at all, it must follow that in the final analysis that Parliament could legislate to frustrate the popular will expressed in the referendum. Moreover, the referendum result was not self-executing: the announcement of the result of the referendum did not in and of itself bring the UK’s membership of the EU to an end. More is required; at least Parliament would need to repeal the ECA 1972. But the people cannot do that.
But is it not at least arguable that, by the 2015 Act, Parliament impliedly delegated the power to make the decision on whether the UK remained in the EU to the people voting in a referendum? The decision to leave has thus been taken; all that remains – absent a retaking of the decision – is implementation of that decision. Parliament might have a great deal to say about the terms of any agreement between the UK and the other Member States and the process of negotiation of that deal. But notification to the EU of the fact of the decision becomes simply a matter of convenience not substance. The authority for the government to issue that notification being vouchsafed by the fact of the decision taken by the people.
This analysis depends upon problematic inferences to be drawn from the 2015 Act. It may be said to represent what Parliament ought to have said in the 2015 Act rather than what it did say! It would require a bold judge to adopt it (but there are bold judges in the Supreme Court). But it offers a logical and smoother path to Brexit that should appeal to all except those determined to frustrate the decision of the people.
VII. Two final points
First, much discussion of this case stresses that Parliament will now, as a result of the case, have an opportunity to debate and vote on the article 50 notification. But it is elementary constitutional law that the Government is accountable to Parliament. No licence from the courts is needed to call the government to account on any matter; adequate political will suffices. Thus if Parliament so desires it may require the government to give an account of its plans for Brexit, whether it intends to remain within the single market (and if so, how), etc. And it may, if there is sufficient support in Parliament, bring these issues to a vote. The Brexit judicial review was not about ensuring that Parliament debated Brexit or article 50; it was only about how the article 50 notification was to be authorised in law.
Secondly, the court’s judgment is in some respects entirely orthodox. Any errors lie in the application of uncontroversial legal principles or in the Government’s failure to raise important points in argument. This is not then a case of judicial overreach where judges arrogate to themselves powers that properly belong to other branches of government. The judges who heard this case had no choice but to decide this “hot potato” without regard to the political consequences.
Christopher Forsyth is Emeritus Sir David Williams Professor of Public Law in the University of Cambridge.