Martin Madej: Judicial decision on the authority of the British PM to trigger Article 50 TEU - possible outcomes and implications
Yesterday, a monumental, wood-panelled gothic-style courtroom in the Royal Courts of Justice in London bore witness to a beginning of truly unprecedented legal proceedings, which stem from a dispute over the constitutional form of the so-called Brexit.
While Article 50 of the Treaty on the European Union ('TEU') clearly states that withdrawal from the Union requires a notification to the European Council, it doesn't specify the body responsible for such notification and, in fact, leaves it to the constitutional requirements of a Member State. And while some argue that this capacity falls into the Royal Prerogative of the UK Government (see Thomas Fairclough or the Government reps), there are others, who claim that triggering of Article 50 is not possible without a reference to the Parliament (see Geoffrey Robertson, Dominic Grieve, Sionaidh Douglas-Scott or Barber, Hickman, King). Indeed, the nature of this dispute goes far beyond the 'mere' question of constitutional competences, which are sort of hard to grasp in a country without codified constitution. It will alter our views both on the judicial review and representative democracy, where the former reflects the relationship between the legislative and the judiciary and the latter relationship between the legislative and the people. Below, I don't seek to defend any of the particular views, but rather to highlight certain normative gravity of the problem.
The above-mentioned legal proceedings were initiated by several applicants who brought a suit claiming that they have a sufficient interest in the declaration whether the Government has such a competence. According to the Guardian, the lead case for the legal challenge should be the one brought by an investment manager Gina Miller. The new Brexit secretary, David Davis, shall resist the action as the defendant.
Now, since there is no official guardian of the constitution (for example constitutional court), the case may 'only' end up at the Supreme Court, the final legal interpretative body in the UK. It is not my intention to presume the Court's decision as many other lawyers did elsewhere. It is possible, however, to analyse the implications of the decision even before its publication. We know that confirming the Royal Prerogative could shake the ground below the feet of the Parliament, which for centuries retained strong position towards the courts. On the other hand, success of the plaintiffs' action would mean the need for the Parliament's approval of the PM's notification, which is currently far from being probable. Consequently, it can be Gina Miller, a UK citizen, who prevents the Brexit from happening with the help of the courts, just as it was Miloš Melčák in 2009, who was succesful in his complaint to the Czech Constitutional Court about the unconstitutionality of the constitutional law, which dissolved the House of Representatives.
The problem with political decisions of the judiciary is that their existence itself is somewhat controversial. Of course, we may believe the judges will limit themselves to the technical interpretation of the relevant law, just as we may fear that their decision will be influenced by their political views. In any case, this is precisely why it is for the politicians to make decisions with major political consequences, not for the courts. It might be legitimate, it might be not. Hiding political contestation behind the veil of law will, in the end, be more likely to damage democracy in the UK that the plaintiffs are (albeit sincerely) trying to protect.
Secondly, it may alter our views on representative democracy. Indeed, the Royal Prerogative is not the only possible justification for the PM's authority to notify the European Council. The Court can go as far as to sanctify the will of the people and place it above the Parliament's opinion, arguing the referendum is a sufficient ground (a ratification, as it were) for the PM to act legally on behalf of the UK. Again, I don't mean to bring up any of the arguments offered by the constitutional theory. Au contraire, let me emphasize the intensity with which a decision of this sort can modify constitutional theory in the future. We truly are facing a groundbreaking moments, we are passing some important milestones in the evolution of the world democracies and it is of essential importance how we respond to them. Just as the refugee crisis implied our position towards solidarity and humanity, just as the Eurocrisis implied our position towards market economies, so do our responses towards referenda imply our understanding of representative democracy as well as the demos itself.
In the UK, the Parliament holds the sovereign power. Not the people, not the Queen. However strange it may sound, the Parliament almost cannot act unconstitutionally. Even more oddly, it is a constituted body, which assumes sovereign powers over its constitutive force. At the end of the day, there is simply no legal constraint on the Parliament, solely the factual one, i.e. the mobilising power of the people. It is a high form of electoral democracy, where the people's will is duly reflected, but not obeyed. Under these circumstances (setting aside the fact that it was in the strategic interest of the Conservative Party), the Parliament called on the people to give it its advisory opinion. Insisting on the opposite would entail a significant shift in our conception of sovereignty in the British context - from the parliamentary sovereignty to the popular sovereignty. That is certainly possible. But it remains highly problematic whether such a change, and that brings me back to the first point, should be in the hands of the courts.
You ask, naturally, what then? Several alternative resolutions have been suggested, none of them, unfortunately, seems to be quite satisfactory. First, there is the option of triggering Article 50 without the Parliament's approval and thus setting things in motion. Leaving out the constitutional controversy of such an action, the court was nevertheless assured by the Government's lawyer Jason Coppel QC, that the PM will not use Article 50 before the end of the year. Acting earlier than that would, after all, significantly worsen the UK's negotiating position, since 2 years from that day, the UK would leave the EU with an agreement or without it (unanimity in the European Council being needed to prolong this time period). It goes without saying that acting in the opposite direction, that is asking the Parliament's approval before the Court's ruling, is simply not imaginable, because then Brexit could hardly mean Brexit as promised by Theresa May. Accordingly, the Parliament will not by itself instruct the PM to notify the European Council, nor it will strike down the European Communities Act 1972 only to strenghten its constitutional position, because it lacks the political will.
As a result, we have here two constitutional players, who derive their sovereignty from different sources, and the clear need to resolve their conflict by a third party. Should we interpret the problem as a purely legal dispute without the political connotations I described above, we may turn to courts and ask their legal opinion. As much as it can correspond to practice in, for example, the USA, Austria, Latvia, Israel and many other countries, I find that highly problematic. Rather than in the wood-panelled gothic-style courtroom, I'd like to have the arguments articulated in the political contestation in the British public sphere, perhaps before the new general elections. The campaigns which preceded the Brexit referendum left us, however, with significant doubts whether such high form of political contestation can be in today's Britain expected.
I decided to write this comment in English, so that we can discuss this most interesting topic, which does not concern the Czech law, not only among ourselves at Jiné Právo, but also with our friends abroad.