neděle 6. listopadu 2016

Martin Madej: Judicial decision on the authority of the British PM to trigger Article 50 TEU - actual outcomes and implications

On Thursday, Queen's Bench Division of the High Court of Justice delivered a long awaited judgment on the authority of the British PM to trigger Art. 50 TEU (Treaty on the European Union) under the Crown's prerogative and concluded it does NOT have such power. The notification according to the Art. 50 (2) TEU can only be given with approval of the Houses of Parliament. The High Court's ruling was made on the background of post-Brexit Britain, sunk in major disagreements about the possibility of Brexit, its nature ("hard" or "soft") and the ability of the Government to secure a good negotiating position. Any judicial decision, favouring one of the camps under these circumstances, naturally was certain to cause a lot of controversy.

I attempted to highlight the importance of the judgment in my article from July. The article was divided into 2 parts: judicial review and representative democracy. I would like to maintain this structure and assess what this judgment tells us about the relationship both between the legislature and the judiciary, as well as between the legislature and the citizens. However, for the reasons given below, I will add a third part which will briefly deal with the main arguments, which led the Court to the above-mentioned conclusion.

Before we move to the merits, let's address the quality of the judgment. It was delivered by three experienced appeal judges, sitting exceptionally at first instance: they are the Lord Chief Justice, the Master of the Rolls and the leading public law judge at the court of appeal. Its argumentation is detailed and reasoned, its language is clear and reserved, certainly appearing impersonal. The question is legal. 'We are not in any way concerned with the use that may be made of the Crown's prerogative power, if such a power can as a matter of law be used in respect of Article 50, or what will follow if the Crown's prerogative powers cannot be used' (see para 5). We heard something similar from the victorious claimant Gina Miller, who later asserted that 'this case was about process, not politics.'

At 111 paragraphs, the Court considers, above all, the country's constitutional principles, the European Communities Act 1972 ("the ECA 1972") and categories of rights affected by the exit. Unfortunately for our present investigation, some of the questions, such as revocable or irrevocable nature of a notice under Art. 50, were common grounds between the parties. According to Financial Times legal commentator David Allen Green, 'the government could have side-stepped this difficulty by not accepting that the notification was irrevocable (and many, including Lord Kerr who wrote Article 50 of the Lisbon treaty, say a notification must be revocable). But it saw this legally sensible move as politically unacceptable. Looking at the judgment, the impression is that the government’s concession on this crucial point determined the outcome of the case' (see Guardian).

Judicial Review

It was disappointing to see that the question of justiciability was swept under the carpet, because it formed, yet again, a common ground between the parties. As a result, the relationship between legislative and judiciary powers found itself completely overshadowed by the relationship between the legislative and the executive. We may disagree whether the whole battle should be fought in legal arena, but we surely must agree that, should it be fought in legal arena, the judges need to give us a convincing explanation.

Parliamentary democracy

Let us now examine the way the Court dealt with the other topic we mentioned, i. e. position of the Parliament and the people in the UK's constitutional system.

First, the Court reiterated that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. 'There is no superior form of law than primary legislation, save only where the Parliament has itself made provision to allow that to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this' (para 20). 'But even then,' continued the Court, 'Parliament remains sovereign and supreme, and has continuing power to remove the authority given to other law by earlier primary legislation' (para 21). The Court cited An Introduction to the Law of the Constitution by the constitutional jurist A. V. Dicey, including the part, which says: 'The judges know nothing about any will of the people except in so far as that will is expressed by an Act of the Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors' (para 22). The Court concluded that this is still the leading account occuring in the cases of highest authority (para 22-23).

Several problems are related with this assertion. First, the doctrine which the Court presents as axiomatic is not really axiomatic. As a matter of fact, the centurial Dicean concept of parliamentary sovereignty has been disputed several times on many platforms (compare William Wade's 'Sovereignty: Revolution or Evolution?', 'Gerald Gardner's What is Parliamentary sovereignty, anyway?' or the case 'Jackson and others v. Her Majesty’s Attorney General [2005] UKHL 56, para 102'). That doesn't mean the Court isn't right, but where else are we to expect clarification on how the possibility of referenda affected the Parliamentary sovereignty? It is truth, however, that at the very end of the ruling we learn that in light of the basic constitutional principles a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. 'In particular, the 2015 Referendum Act was passed against a background including a clear briefing paper to parlamentarians explaining that the referendum would have advisory effect only' (para 106-107).

Second, while it may be correct that such parts of constitutional law in Scotland and Northern Ireland in relation to the interaction between statute and the Crown's prerogative powers resemble the law of England and Wales on that topic (para 19), it remains unclear to me if the same applies to the legal principles governing the Parliamentary supremacy in Scotland. Underneath my previous article, it has been pointed out to me by Jan Nevyjel, that 'this has been strongly argued in cases like MacCormick v Lord Advocate [1953], Gibson v Lord Advocate [1975] and also supported by dicta of Baroness Hale of Richmond in Jackson v Attorney General [2005]. This fact not only undermines the argument that the Government should now have sufficient ground to trigger the leave based on referendum (Scots decisively voted to remain and in Scotland it is the people who are sovereign) but will also undermine the legitimity of future House of Commons repealing ECA since the will of Scottish people is simply not sufficiently represented in the Parliament.' I noticed similar claim in the oral submission of Miss Mountfield QC, which the Court did not find necessary to address (para 102). Perhaps, one of you will be able to clarify this to me.

All in all, it seems to me the Court did not pay enough attention to some of the more pre-normative questions related to this topic, which might not have been essential to resolve the case, but can be addressed very openly and conclusively by the Supreme Court as the Secretary of State already announced his intention to appeal.

Decisive arguments

If we leave out the flaws of the judgment I described above, the judgment looks fairly appeal-proof.

The principle of Parliamentary Sovereignty requires that only Parliament can overturn an Act of Parliament. '[P]rimary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers' (para 25). Using Queen's prerogative in a way as to step out of the EU Treaties will at the end of the day mean altering the ECA 1972, because the EU legislation (with all the rights it gives to EU citizens) will no longer have legal effect in the UK as foreseen by the bill. '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 the domestic law. It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights' (para 32). In other words, it was the Parliament, which introduced the EU to the UK, and it can only be the Parliament again, which will see the EU off (para 87, para 94).

Another argument is related to which constitutional principle is superior. '[T]he conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of prerogative powers' (para 30). The Secretary of the State claimed express language would need to be found in the ECA 1972 before it could be inferred that Parliament intended to remove the Crown's prerogative power to take steps to remove the UK from the European Communities (para 84). To support his claim, he pointed at the Rees-Mogg case, which concerned the Crown's ratification of Protocol on Social Policy and its affect on domestic law. However, according to the Court, this case does not provide guidance in the present case, as it concerned extension and not removal of the EU rights (para 91). Instead, the Court highlighted the constitutional principle that, unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers (para 84). As a result, the onus was on the defendant to prove that the Parliament empowered the government to dispose with domestic law in this manner and not vice versa.

Some other convincing arguments can also be found in the High Court's analysis of the wording of ECA 1972 (para 93).

As it was mentioned, we can expect one more judgment on this issue by the UK Supreme Court, i.e. in a course of few months. I wish I was capable of better analysis of the case than the one I provided above. I hope that before the Supreme Court's judgment is delivered, we can discuss the questions and answers this topic brings and get closer to the understanding of the problem in its entirety.

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