Lawyers aren’t trying to stop Brexit, they’re trying maintain our constitutional law
Ever since 24 June, the whole of the UK has been shrouded in confusion and uncertainty. It became evident very quickly that there was no Brexit plan.
An avalanche of questions crashed upon our heads, and were greeted by silence; our elected leaders were too busy shuffling among themselves to break the hush and provide answers — or probably more accurately, to even formulate any answers.
All of a sudden, there was one legislative provision on everyone’s mind; a sentence that constitutional law lecturers could only ever dream of being uttered. The news was awash with something called Article 50.
Nestled amongst the Lisbon Treaty, Article 50 had suddenly been thrust into the spotlight. When would we trigger it? How would we? Can we negotiate before? What will it logistically mean?
In reply came the self-assured tone of David Cameron in his resignation speech, where he implied that the Prime Minister can trigger it alone by royal prerogative, without recourse to parliament. Simple.
And he would have got away with it too, if it wasn’t for those meddling constitutional lawyers, who had the temerity to raise their head above the parapet and note the issue was gravely more complicated.
Fallout from the vote to leave
On the back of a fascinating article by Nick Barber, Tom Hickman and Jeff King, it became clear that several claimants were bringing judicial review proceedings against the government, to ensure that it did not rely on royal prerogative, but instead went through parliament to trigger Article 50.
Saying this created a stir is an understatement.
Mishcon de Reya became the poster boy for the action, and was hailed and attacked as such.
For some Brexit voters, it raised the phantom of granting MPs — the vast majority of who were pro-Bremain — a veto over leaving the EU. For some desperate remainers, they could take time from signing e-petitions to celebrate what they thought was a way to block Brexit.
Both are incorrect; this is a crucial question about process, not outcome.
In the aforementioned blog post, the authors said who triggers Article 50 matters for two reasons: it will “fundamentally change our constitutional arrangements” and “the timing of [notification] has major implications for our bargaining position”.
But here I respectfully disagree.
The importance of this case goes far beyond our present circumstances, and instead has dramatic implications for our constitution and the balance of power between parliament and the government. The precedent that finding for the government could set, and the kind of law it could overturn, is so seismic that this isn’t about the European Union at all; this is about preventing what is a greater threat to parliamentary sovereignty than EU membership ever was — the extension of royal prerogative.
Noel Cox defines royal prerogative as:
[T]he residue of royal power which derives from the ancient rights, privileges and powers of the sovereign, including the prerogative of mercy [and] political prerogatives such as declaring war or peace”
William Blackstone, a legal mastermind from the 1700s, believed that royal prerogative is exclusive — if parliament has its hands on an area, i.e. has made legislation on a topic, royal powers can’t be used to cut across it. This is made clear in the landmark case from 400 years ago, the Case of Proclamations (1610), where another legal legend Sir Edward Coke proclaimed that:
[T]he King by his proclamation… cannot change any part of the common law, or statute law, or the customs of the realm.
Therefore, if Article 50 being invoked by the PM’s royal prerogative changes any parliamentary legislation, the PM has breached constitutional law.
Statute beats prerogative
Mark Elliott, the constitutional law expert and brilliant Cambridge University lecturer, believes royal powers can be used to invoke Article 50, but does agree that the royal prerogative cannot cut across statute. His argument instead is that invoking Article 50 will not impact upon the European Communities Act 1972 (ECA), or any other legislation.
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And this is where the major fault line lies in this hulking debate: does giving notice via Article 50 actually ‘change’ any law? If it does, it has breached Coke’s rule; if it doesn’t, there is no problem.
At this point I stopped; the word ‘notice’ bounced about my head. I just realised that giving notice within your job was a perfect analogy that seemed to defeat my argument.
When you give notice to your employer, it has no legal impact upon your employee-employer relationship; although the clock has started ticking, you can still rely fully on the rights in your employment contract, which are left unchanged.
One could then conclude that notice alone does not cut across or contradict the ECA.
Or, at least, that would be the case until you ask if the change of statute that Coke spoke of needs to be immediate.
‘Immediacy’ and the ‘latent impact’
Article 50 will change the law, just not immediately; my argument is that the change need not be ‘immediate’ for it to make the exercise of royal prerogative unconstitutional.
The PM’s proposed use of the royal prerogative has a latent impact upon parliamentary legislation. It certainly will impact upon the ECA, but not for two years at the most, or an unspecified time before then.
The ECA makes EU law directly effective in the UK; when the two years is up, or sooner, EU law cannot continue to apply as before. This will necessitate a change in the ECA, otherwise the UK will continue to be subject to all the EU legislation which it is now (although the drafting is not clear on this point, for treaties which are applicable to the UK already. The act does not make their continued affect on the UK contingent to our continued EU membership, but appears to for future treaties).
Elliott concedes that “an Article 50 process may, some way down the line, alter the effect of the ECA 1972”, but he does not equate this to a change of statute law.
These are all questions of degree, and I for one believe that to alter the effect of legislation, whether this will occur in the coming month or months, still sees royal prerogative being used to change statutory law. Indeed, Elliott is most likely right when he suggests that:
[T[he use of prerogative power so as to adjust or extinguish treaty obligations to which domestic legislation refers is some distance from the sort of mischief that Sir Edward Coke had in mind.
Yet, the fact remains that this is still royal powers being wielded against parliament-made law, regardless of how uncertain we are of the extent of its impact or when that impact will strike. When it does, and however minimal or seismic that impact will be upon UK legislation, it will still be an impact and it has never and should never be the place of the head of state to stretch across the separation of powers and meddle with statute, in any impactful way. It is impactful if it will distort the effect of the legislation; which is what invoking Article 50 will do, eventually.
Now, I’m not predisposed to care that this case could chip away at Oliver Cromwell’s legacy; according to him, I’m just another of those “barbarous wretches” of Ulster. The implications of the extension of royal prerogative are far more practical than that.
The precedent this case could set — that royal powers can in fact undermine statute — would allow the government of the day to impose its will regardless of parliamentary votes. For a representative democracy, that’s pretty significant.
If next year, Theresa May loses a vote to repeal the Human Rights Act 1998 (HRA) by one vote, after only 17 Tory MPs rebel (a very possible proposition), Theresa May, using the precedent set by her invoking Article 50, could simply undermine the HRA with amendments herself, using her royal prerogative.
Royal prerogative is not codified; if the court extends prerogative, particularly on the complex and uncertain facts present in this case, they open the door to unsanctionable abuse by a future government in the shelter of the shadow cast by this precedent.
The ECA — and the implications of its drafting
Elliott also argues that the drafting of the ECA means that it will not be affected by invoking Article 50. The act states that “such rights, powers, liabilities, obligations” as are “from time to time provided for by or under the treaties” have effect in UK law. Elliott argues that the act is there to blindly bite onto any EU law which the UK and the Member States decide, on the international law plane, will apply to the UK. Therefore the ECA’s mechanism of biting onto EU law remains, despite Article 50 notification; it is only the pool of laws it can bite on that dwindles. Elliott argues that dwindling that pool is done external to UK domestic legislation.
However, ‘treaties’ is a defined term within the ct. The ECA explicitly lists the many different agreements which ‘treaties’ includes. If Article 50 leads to negotiations that diminish ‘the pool’, the chance that none of these listed agreements will face the chop is slim. If any of the agreements within the ‘treaties’ definition is chopped out of the pool, surely this will demand a change to the statutory definition of ‘treaties’. Therefore, invoking Article 50 has cut across statute.
However, Elliott reasons that ‘from time to time’ means that if the UK and EU come together to change the treaties themselves so the UK is no longer a party to them, the ECA is not impacted, but simply is left with nothing to bite on to. He argues that the term ‘from time to time’ shelters the act from being impacted upon by any changes in the EU law which passes through it into the UK — the open gate of the ECA is unchanged and untroubled whether it is a busy thoroughfare or a discussed path before it.
However, in this, I side with Barber et al, who entirely revoke this interpretation of ‘from time to time’: “is not an answer…because this is obviously intended to cater for the changing rights and obligations of the UK under EU law…within the EU”.
Distinct spheres of activity
Equally, I strongly contest Elliott’s assertion that:
[N]o tension between the ECA and the prerogative arises because they [are] concerned with distinct spheres of activity, the one operating on the plane of diplomacy and international law, and the other operating on the plane of domestic law.
So deep rooted is the EU in our domestic law, so intertwined, that to tug at a thread by invoking Article 50 will begin to unravel other parts of our legal tapestry; domestic legal parts of it. If an action on the international plane will impact upon our domestic statute, royal prerogative is not appropriate for the international action. It would be entirely inappropriate for us to leave the European Convention of Human Rights by royal prerogative, even though it is an international agreement given assent by royal prerogative. The assent stage and ripping an impactful international treaty out of our domestic law are not the same, just because they are the start and end of that specific relationship. Assent is entirely appropriate for royal powers; yet using royal prerogative to leave a treaty, which impacted upon our domestic legislation, cannot equally be justified solely due to its international nature.
‘My Kingdom for a Horse’
Many leading legal commentators, including Joshua Rozenburg, have questioned whether Mishcon and co’s action will have any chance of success. However, finding for the government in this case will mean the tipping of an equilibrium between statute and crown, which was only reached after England ripped itself apart in civil war.
The exclusion of prerogative powers from territory occupied by statute, as laid down in 1610, is meant to be absolute; it is not meant to be a question of degree, and so if the courts were to say there will be an impact, but find for the government as that impact won’t be substantial enough, that is an extension of royal prerogative. If the court finds that there is no impact, then we must question how the courts define ‘impact’ and how they can foresee Article 50’s impact with such certainty when the whole process and timeline is masked by such uncertainty.
And when we pull our heads out from the blizzard of complex legal arguments involved, we must conclude that finding in favour of the government will mean an extension of royal powers, either explicitly or practically.
Those picketing Mishcon, who voted Leave to ‘regain’ parliamentary sovereignty, are ironically supporting an action which would do greater harm than EU membership ever did to it. They are doing their very best Richard III impression; wondering about stage, trying to give away their entire kingdom for a horse. The ‘horse’ is the transient, short sighted urgency to invoke Article 50 as soon as possible, whilst the ‘kingdom’ is the hard fought curtailment of royal prerogative.
In several generations time, we won’t remember the composition of this cabinet, but we will still feel the aftershocks of Brexit. This is bigger than a single cabinet; it is for the collection of parties in parliament from across England, Scotland, Wales and Northern Ireland to play the pivotal role.
This case isn’t lawyers trying to stop Brexit; it’s an attempt to maintain our constitutional order, at a time when everything else appears to whirling around us in chaos.
The fact that the top constitutional law academics are coming down on different sides, and are arguing on points of degree, shows how close run a thing this is, therefore vindicating Mishcon and others’ choice to bring the action.
I hope that the Article 50 challenge is successful; we’ve left the EU, let’s not trade off the kingdom for a horse at the same time.
Michael Walker is a law graduate from the University of Cambridge. He is starting his LPC next year and has been offered a training contract.