[The following was commissioned by Counsel Magazine and is also published here.]
I’ll take some things as read.
You’ll know there’s a legal challenge to the Government’s position that it is for it and not Parliament to decide what action to take following the result of the Referendum. And that the challenge will be heard in the Divisional Court in October with a likely leapfrog appeal to the Supreme Court in December.
You’ll be aware that the challenge raises a question about the nature of the limits to the Royal Prerogative. Will triggering Article 50 denude the European Communities Act 1972 of content? Will it deprive UK nationals of their rights as an EU citizen? Is it Theresa May’s finger on the trigger? Or is must it be by Act of Parliament?
Published alongside this piece is another arguing that these are political questions – and that the courts should not get involved. I disagree. That there are political ramifications to the answers doesn’t change the nature of the questions from legal.
Few of us would baulk at the suggestion that the courts have an important role to play in regulating the relationship between the citizen and the Executive. Or in circumscribing when the Royal Prerogative can and cannot be used. Baulkers, if there are any, should read the words of Lord Oliver in Rayner (Mincing Lane) v DTI [1990] 2 AC 418, 462:
as a matter of the constitutional law of the United Kingdom… the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.
Indeed, publicly at least, even the Government says that the challenge raises a justiciable question. I can’t tell you what the Government’s pleaded position is because, remarkably, the Divisional Court has ordered that all documents produced by the Government be kept confidential.
But, as far as we are aware, the issue is not a live one. So let me turn to the question why the proper functioning of democracy requires that Parliament decide. There are at least four overlapping reasons.
First, Parliament is supreme. It chose to enact a referendum that doesn’t mandate our departure from the European Union. It chose one that the then Foreign Secretary recognised in Parliament as merely “advisory”. Mr Hammond went on to say that the Government would regard itself as bound by the result – but that political commitment does not alter the legal character of the European Union Referendum Act 2015 as advisory. To treat it as binding is to undermine the Supremacy of Parliament. It is to replace its intention, as enacted in the Referendum, with the intention of the Executive.
Second, the United Kingdom’s membership of the European Union gives us rights as individuals: to live abroad, healthcare cover on temporary travels, to accrue pension rights working in other Member States, and so on. Parliament has not acted to modify or abrogate those rights. It cannot be right that the Executive can. To say this is to do no more than articulate a specific instance of an important general rule about the limits of Prerogative Power. To ignore it is to put citizens at the mercy of the Government.
Third, the fact that it is advisory inevitably gives rise to the question: who does it advise?
We know Theresa May opposes a second vote on the outcome of our negotiations with our EU partners. We also know that others in the Conservative Party feel differently. Nicky Morgan, who as Education Secretary also publicly contemplated standing for the leadership, says that Parliament must have a say on the final deal. There are wide open spaces between these two positions. One will lead to us leaving the EU: Brexit, after all, means Brexit. The other might not. The difference between them reflects the personal approaches of those two politicians to the outcome of the Referendum. But the electorate has had no chance to speak on which position should prevail. The only choice was one made by Conservative MPs pursuing considerations which included (and I mean no criticism when I say this) parochial ones. To deny Parliament any say on the choice between these positions cannot be right.
Finally, alongside the question, ‘who did the referendum advise’ is the related one, ‘what did it advise’? The binary formulation put to the electorate “Should the United Kingdom remain a member of the European Union or leave the European Union?” skates over the many parallel universes offered up during the campaign: lower and not lower immigration, inside and not inside the single market, money spent and not spent on the NHS, retained and not retained regional investment and agricultural subsidies, and so on. These, and the trade-offs between them, are profoundly important questions. But they were not put in the Referendum; they figured in no election manifesto; no politician can claim a democratic mandate to answer them. I say they cannot be for an unelected Prime Minister.
Let me acknowledge this.
Although the argument I am putting forward is a procedural one – should Parliament or the Prime Minister make the decision about triggering Article 50 – I am interested in it because I believe the sovereignty of Parliament is substantively engaged. And I can only say that if I am prepared to contemplate that Parliament might take a different view to the Prime Minister.
But to contemplate this is not to urge Parliament to ignore the outcome of the Referendum. It is to urge Parliament to consider it in the context in which it arose. That context includes a number of assurances – of a points-based immigration system, of £350m extra to spend on the NHS, of VAT cuts on fuel – each of which has already been disavowed by the Prime Minister. Is the falsity of a representation relevant to the quality of the consent it induces? For legal readers of Counsel, there is only one answer. It includes the imprecision of the Referendum question and the competing accounts of Brexit that were given. It includes the fact that Parliament enacted only an advisory Referendum. It includes the enormous importance to our life as a nation of whether we are inside or outside the EU. And it includes the small margin of victory. Each of these factors must be weighed in the balance, alongside the democratic importance of adhering to the outcome of a hard-fought referendum campaign.
This weighing exercise is not one for an unelected Prime Minister. Parliament, with the roving democratic mandate given to its Members, must find a resolution. It should decide what to do with the result of the Referendum. And those who value democracy should hope that the Divisional, and then the Supreme Court, will direct that it does.
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Waiting for Godot 
I am no expert on constitutional law, but arguing from first principles, it would seem a parliamentary vote is vitally necessary because:
1) Handing in notification to leave will immediately force Parliament to give the Executive powers that it would not normally have in order to get decisions taken speedily in the short two year time frame.
2) For two years after the notification, and perhaps many years after that, Parliament will end up dancing to the tune of Brexit. What will be discussed and passed as legislation, and when, will be dictated by the urgency of Brexit deadlines.
So, I believe that before handing in notification, the Executive should be forced to explain:
1) How it intends to identify all the pieces of legislation in the last 43 years that will be affected by Brexit, what kind of grandfathering legislation it needs to pass, when is parliament going to be required to pass new legislation for laws that will not be valid post-Brexit and whether the Executive will need special powers to pass legislation without the usual parliamentary scrutiny.
2) For all policy areas that will be affected by Brexit, Parliament needs some details from the Executive. Offhand, it seems to me, these must in include: agricultural policy, immigration policy, regional development funds, research policy, relations with the Republic of Ireland with respect to open borders and the Good Friday agreement, environmental policy, energy security, cooperation on law enforcement, cooperation on border control, industrial policy (in so far as Brexit will naturally entail massive displacement in industrial sectors). I am sure there are many more. For all these areas, the Executive should be forced to give a broad outline of their new approach, a clear timetable of when parliament will get new legislation to scrutinise, when the legislation has to be passed and how the government intends to have the bureaucratic resources in place for the day after Brexit — for example, to process the 3 million applications for permanent residence for EU citizens in the UK that might be expected on the day after Brexit, or the bureaucracy that will be needed to manage the new agricultural policy.
It seems to me the Executive might have trouble giving answers to these questions before giving notification to leave the EU. In which case, the Parliament can reasonably be asked to debate whether the Article 50 process is realistic way to leave the EU without causing massive legal, political and economic chaos.
Well put. No decision should be made without a timetable being proposed and being at least debated by parliament.
If May commits now to a Parliamentary vote on the terms of whatever EU deal is agreed, won’t that weaken her hand? Won’t EU negotiators be tempted to give us a terrible deal, on the basis that the worse the deal is, the more likely Parliament are to reject it?
As a Remainer who believes that the government can do nothing but accept the democratic result of the referendum, advisory or not, I think May is right to play everything close to her chest at this stage. It seems to me that there’s sufficient grey in the law to permit her to do so.
Interesting article. Particularly the point about the political implications of a point of law not impacting on whether the issue is justiciable or not (which was forgotten by many in the run up to the Labour cases earlier this year).
To my mind (and I think this is the orthodox view), the question is one of prerogative and everything you have brought up is fact-specific chaff which ought to be ignored. However the Supreme Court in its current incarnation does seem to be making a habit of upsetting the orthodoxy so I can see this going either way.
The argument can be simplified in this way.
Suppose there had been no referendum, would it have been open to the executive, without an Act of Parliament, to revoke the rights and obligations created by the European Communities Act 1972 by simply withdrawing from the Treaty of Rome? On a simple reading of the European Communities Act 1972, the answer is “No”. That Act, by s.2, incorporates those rights into UK law, and it is trite that the executive cannot by unilateral action change the law.
The next question then is, did the Act which provided for the referendum expressly authorise the executive, in the event of a majority voting in favour of leave, to revoke the rights and obligations created by the 1972 Act without Parliamentary approval? Again, on the face of it, the answer is no, as there are no express words giving it such authority.
The final and crucial question then is, did the Act which provided for the referendum impliedly authorise the executive to do this? This gives rise to the sometimes difficult question of implication – when does one proposition necessarily follow from another? The general rule of construction is that you imply something only if it is necessary to give effect to the express provisions of the document. Here, the Government will no doubt argue that it is “implicit” in the referendum Act that if there was a vote to leave, then Parliament’s approval to the revocation of the 1972 Act would not be required. But this seems unconvincing, because the referendum Act still makes sense if one reads it as “advisory” – i.e. it is merely the taking of a vote on the basis of which Parliament must then decide what to do. After all, it is not an Act which forces the executive to withdraw from the Treaty of Rome, so why read it as an Act which deprives Parliament of its usual legislative powers?
Thanks Peter. That’s a very elegant argument.
These are indeed elegant arguments, more so than the open letter from A C Grayling referred to on Twitter by JM. However, I’d be interested in opinions on the following scenario:
– the courts conclude that legislation is necessary to implement Brexit.
– the Government prepare a simple Bill which gives them the authority to invoke article 50
– Parliament votes this down.
Presumably a confidence vote will follow & a general election called (there may well be other consequences from those who voted leave in view of the ‘we will implement the decision’ statement)
A large number of people (all leavers plus others) see this as a denial of democracy.
What next?
Responding to Graham…what next is that someone explains to the people what democracy means, and that is that you don’t mandate your MP to vote the way you want him to but rather you elect him/her to act in the interests of ALL the people…those who voted for him/her, those who didn’t, the old, the young and the sick and all those who didn’t vote at all.
I have been struggling to interpret all this in a way which might make sense to all of us bears of little brain. Try this – a newly elected government holds a referendum, as promised in its manifesto, on bringing back the death penalty. The public, as anticipated, votes overwhelmingly in favour.
Q: Come Monday morning do we start chopping off heads?…or is Parliament ‘advised’ of the will of the people but proceeds to debate the result and votes to do no such thing?
We bears of little brain elect people of greater intellect, greater wisdom and. who knows, greater humanity to take difficult decisions on behalf of all of us. That’s what Parliament is for (and what Royal Prerogative isn’t)…That’s democracy…and the sooner someone sets about explaining this the better.
Responding to Alan. What I think you’re saying is that despite the referendum being in a manifesto, being approved by Parliament & the statement ‘we will implement what you decide’ on the literature, Parliament can decide not to implement the decision and just needs to explain to the ‘Bears’ that they didn’t understand.
I do think that this should have been explained to the Bears in terms of this was an advisory referendum and their elected representatives might know better (which I think is one of your points)
However, as I can’t see anyone explaining this to us bears of little intellect and remaining elected, then what will happen if Parliament votes Brexit down?
With the greatest respect I don’t think you engaged with the ‘would we immediately start chopping off heads?’ point. I do hope you agree that manifestly we wouldn’t?
The referendum was specifically designed to be ‘advisory’ (my understanding is that they could have opted for it to be other)…moreover the possibility of a Judicial Review was specifically anticipated and duly built in to the procedure. JR is there to stop politicians getting above themselves!
I agree that it would have been vastly preferable if this had been explained…perhaps in the absence of an honest politician this might have been something we could expect of our media…as might explaining what you elect your MP to do.
To answer your question ‘What will happen if they vote it down?’ (and if they follow the way they, as individuals, voted in the referendum they will…but of course they may interpret their duty differently). It’s clear that they hope the Judiciary will spare them the embarrassment of having to do so…and make no mistake M’Lud detests having to kow-tow to Europe so may yet surprise/disappoint…but in short er, well…we won’t be leaving.
Almost certainly they’ll fudge it, hold a second referendum and we’ll vote Remain (which will satisfy those keen on ‘democracy’) but before that/entwined with that, there’ll be a vote of no confidence supported by the thwarted Tory right. Conservatives and Labour will split and the old two party system will go down the proverbial. There will be a swivel eyed UKIP/Tory right, a Blairite /Tory left ‘centrist’ group, and a Corbyn/SNP/Green and perhaps Lib Dem left…and PR…and Polish plumbers. Brace yourself!
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Jo Makes some very good points. Perhaps the referendum question ought to have been better formulated, but few people complained before the result was known. There were indeed false representations made during the debate, but they were made by both sides. The referendum was only advisory and the margin in favour of Brexit was relatively small. However, none of this can be deployed in favour of the (essentially legal) argument that the triggering of Article 50 would require Parliamentary approval.
What those who advocate the necessity of a vote in Parliament all miss is this. The triggering of Article 50 (while it may have various ultimate consequences, both political and for our international relations) does not require an Act of Parliament or the repeal of any Act of Parliament. Let us remind ourselves of what Article 50 actually says:-
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
By Paragraph 3, it can be seen that the effect of triggering Article 50 is that, after a certain period of time, the ‘Treaties shall cease to apply.’ The domestic legislation enacted as a consequence of those treaties would then become otiose and many may need to be repealed or amended and other legislation enacted. But, such parliamentary activity would be a response to the changes in our treaty arrangements. Governments enter into and alter this country’s treaty arrangements all the time without a vote in Parliament. The principal exception to this is where a treaty requires an Act of Parliament to bring its terms into effect (ratification). That, of course, is not the case here.
Legally therefore, the triggering of Article 50 is no more a constitutional act than, say, the suspension of diplomatic relations with another country which leads to that other country expelling our citizens, or requiring them to obtain visas.
Politically of course, a Government might not wish to make such a fundamental change to our international relations without some sort of a mandate. That mandate was provided by the result of the referendum.
The referendum has no more force than that. Technically, legally and constitutionally, it may be ignored. Politically, it cannot; and those who argue that it should be ignored, or overturned by Parliament tempt us to tread a very dangerous path. Emotions have run very high in this debate. Many opinions are polarised. Were the result of the democratic referendum to be ignored there would, at the very least, be rioting in our streets. Conceivably, the country could descend into civil conflict.
The Royal Prerogative has been used in the past to take this country to war. There is absolutely no legal nor constitutional reason that it can’t be used to notify another state (or a loose confederation of states) that we wish to alter our former treaty arrangements.
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The UK Government claims that it is fully ‘committed’ to involving the British Overseas Territories and Crown Dependencies as it prepares for negotiations to leave the EU, to ensure that ‘their interests’ are taken into account.
But save for a minority of residents who may have lived in the UK within the past 15 years (and save for the unusual situation of Gibraltar), the residents of the BOTs and CDs have not been fairly or properly consulted on the issue of Brexit; they have had no direct vote on the issue; and nor have they had any significant representation of their interests, certainly not in the UK Parliament, and certainly not by the UK Government or the UK Opposition, despite the fact that they are, for the most part, British citizens (and therefore EU citizens, at least for the time being).
Whether or not UK Parliamentary approval is required before the UK Government can give notice under Article 50, is there any chance that the Courts might take into account the fact that the rights of this minority group have been effectively overlooked altogether?
Their position is not quite the same as those British expats who chose to take up residence in the European Union more than 15 years ago, losing their right to vote in the UK as a result.
We watch from afar with interest.