December 6, 2016    4 minute read

Why It Won’t Be A Surprise If The Government Loses Its Article 50 Appeal

Legal Discourse    December 6, 2016    4 minute read

Why It Won’t Be A Surprise If The Government Loses Its Article 50 Appeal

The recent High Court judgment against the Government invoking Article 50 without Parliament’s involvement has incited a fierce response. Nigel Farage stated that “a betrayal may be near at hand” and the Daily Mail went one step further, branding the judiciary as “enemies of the people”.

Some would say this crossed the line, leading to immediate calls for the Lord Chancellor and the Prime Minister to speak out and defend the judiciary for doing what it is there to do: provide independent, impartial interpretation of the law.

The Logical Decision

Although many have vented frustration at the judiciary for its decision, the decision itself is no surprise from a legal perspective and is, therefore, likely to be upheld by the Supreme Court in its judgment due early in the new year. The question put to the courts in the (Miller) case has been a rather simple one: does the executive have the power to withdraw the UK from the EU without Parliament’s involvement? The issue stems from Article 50 of the Lisbon Treaty which allows a member state to leave the Union. However, it does not stipulate the national procedures required for doing so, stating that:

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

Indeed, it is unsurprising that the EU would expect member states to create mechanisms in their own national laws to achieve this. This is especially relevant to the UK which prides itself on its dualist system and parliamentary sovereignty.

So what are the UK’s “constitutional requirements”? The Government is relying on the obscure and opaque “prerogative powers argument.” Prerogative powers are historic rights or privileges exercised by the monarch without requiring explicit parliamentary authority.

In more recent times there have been attempts to restrict these powers, due to their undemocratic nature and any remaining powers, in practice, are largely vested in the executive. The Government continues to argue that it has the prerogative power to invoke Article 50 independently. However, this argument is weak.

Parliament Is King

This is because such a prerogative power would fail to respect the most fundamental rule of the UK’s constitution, that Parliament is sovereign and so Government of the day cannot by exercise of prerogative powers override legislation enacted by Parliament, which is what the Government is effectively seeking to do with the European Communities Act 1972 by invoking Article 50. This would see the UK not acting “in accordance with its own constitutional requirements” as Article 50 requires. Therefore, the government’s position is self-defeating: the prerogative cannot be used to circumvent Parliamentary involvement, as the use of prerogative powers themselves are subservient to Parliamentary sovereignty which is engaged in this case.

The Real Issue

The problem for the Government then is not the judiciary (as many purport). Instead, it is down to lack of preparation by Parliament earlier, on two counts. First, had clear legal provisions for exiting the Union been made at the time of enacting the European Communities Act 1972 or the introduction of Article 50, there would be no need for judicial intervention now. If such provisions allowed the Government to withdraw the UK from the Union without further Parliamentary discourse, they would have to be respected.

Questions remain as to why no positive action was taken on the matter, though it was likely caused by the naivety and disbelief that the UK would one day be in a position where it was seeking to leave the EU. The second issue is the European Union Referendum Act 2015 itself where the outcome of the referendum is not legally binding. This is because a referendum result is merely ‘advisory’ unless the Act regarding it states otherwise – which the 2015 Act did not.

The real surprise, from a legal perspective then, would be if the Supreme Court finds for the Government, not the other way around.

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