Exit from the European Union: Article 50, Parliament and the Prerogative in the UK Courts

On Monday afternoon (28/11) I had the opportunity to go along to a seminar on the above topic at the University of Liverpool. The panel discussion was led by Adam Tucker; Constitutional Lawyer at the University, and Mike Gordon; Senior Lecturer in Constitutional Law, also at the University.

The discussion began with a brief mention of the recent litigation on Article 50 process at the High Court, and the appeal next week at the Supreme Court. As there has been so much discussion on the case it seemed only right to hold a discussion at this time. The two main comments were there has been a lot of talk of the case being “obviously wrong or obviously right”, and politics does play a part but the discussion today will favour common law rules.

The first speaker was Professor Aileen McHarg of Public Law at the University of Strathclyde who focused on the constitutional impact of the case, with the judiciary being in a “difficult position”. The Miller case litigation can be seen as “an attempt to halt Brexit” with the Liberal Democrats and 80 other MP’s creating a stumbling block in Parliament leading to delays. “The time to argue process was before the referendum, not now”, and yes the referendum was not binding but expected to be followed. Prof McHarg also added that “parliamentary sovereignty does not mean should decide everything”, and has the view of many that “vetoing Brexit could be undemocratic”, and the vote should be respected. However “it is not clear what it means and Parliament should have a say” on that.

Prof McHarg made two main points; with the first being the Miller case doesn’t guarantee a parliamentary say as a bill could just be approved, and “parliament is not in any better decision than the government to decide.” The second point is the territorial dimension e.g., Scotland and Northern Ireland, with the Scottish and Welsh assemblies intervening in the Miller case. This could be “democratically problematic and could lead to resentment” if this led to blocking Brexit. The Scottish government have felt “forced to intervene in the case”, which could have decided behind closed doors and avoided this conflict. The strictly legal rules here will “force the courts to make a choice” on this difficult decision where “the law is not clear”, and the attacks against the judges have not been excusable. The “irony of the Brexit vote to restore constitution has led to this litigation”.

The second speaker was Dr Richard Kirkham; Senior Lecturer from the University of Sheffield. Dr Kirkham spoke on the Courts and the duty to exercise restraint. The “deeper issue is about how we interpret law”, which the case will have to decide. The real problem was in 2015 when the referendum act was created as “the worst bit of legislation ever written”, as included nothing about what happens afterwards. Dr Kirkham gave the prediction that the result “should be respected whatever”, and this could be a “delaying tactic but not a mistake”, as a part of political constitution and democracy. The conduit argument of joining the European Community with the ECA in 1972 was mentioned quoting J. Finnis as an “alternative rights based analysis”, where the “prerogative power includes the right to make or break treaties”, and only a “statutory right created by Parliament that can not be changed.” The decision in the Miller case is “not a bad example of judicial activism”, the case would require activism either way. The main problem leading to this mess after the referendum is that there was “very little governance in the 2015 act”.

The third speaker was Dr Hélène Tyrrell; Lecturer on Public Law from the University of Newcastle, who focused on the European Communities Act from 1972 and the narrow legal question about the scope of the prerogative power. She explained that it was “not a question on whether parliament should have a say, but whether the executive (PM) have the authority?”. In the Divisional Court, the Government argued that authority is given by the prerogative power to conduct foreign affairs. The claimants argued (successfully) the contrary, on the basis that the effect of an Article 50 notification would “frustrate” the ECA 1972. The claimant’s arguments have since been challenged by a number of academics, who suggest that the statute (ECA) should be understood as merely ‘ambulatory’ (a ‘gateway’ a ‘conduit’, a ‘filter’) for the rights existing on the international plane. If that is the case, then an A50 notification affects rights on the international plane only, not rights found in domestic law. That would be well within the foreign affairs prerogative. Dr Tyrrell was not persuaded by those arguments, giving reasons as to why the analogical reasoning was not strong enough to support it. She concluded with some general reflections, including a feeling that the Supreme Court will be under “enormous pressure to give an unanimous decision”, even if for slightly different reasons. Although it will be more interesting for the academics, if they do not!

The fourth speaker was Professor of Law; TT Arvind, also from the University of Newcastle who began talking about the broad issue with the whole spectrum of hard Brexit to soft Brexit, as no one knows what agreement we will get. The key question is “who should decide what Brexit looks like; the government or Parliament ?” TT Arvind feels it is “a tragedy that the case has come to court”.

Mike Gordon gave a sum up point of this being a fascinating debate that we are all engaged in, and now contextually more informed. There was some time for a Q&A from the audience with the first question being; “Would a codified constitution make our lives easier?” The answer given was that there was nothing on this before the referendum, and there would be “problems creating a written constitution” as there are “profound differences of opinion on what democracy means.”

Professor Michael Dougan of EU law at Liverpool, was in the audience and added some comments that the decision could be seen to be more political than to do with law. He added that this is a major “defining moment for 100 years” politically, legally and economically. “EU rights and obligations have been transmitted into domestic law” over the last few decades, and “the case will set a tone in an increasing power of the executive.”  It was agreed by the panel that UKIP created this referendum, and now we have a debate about “the will of the people versus law”, and “do we need more democracy or less?” The referendum “was a travesty and should not have been allowed like it was”, as was self serving on both sides and is a “massively grave case for concern.” Also there is a “technical nightmare with contracts with the EU needing to be agreed on a case by case basis”.


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