A non-hysterical guide to Article 50 case (FT)
What the Article 50 appeal before the Supreme Court is — and isn’t — about
David Allen Green
On Monday, the UK Supreme Court will begin hearing a significant constitutional case relating to Brexit and Article 50, known as “Miller” after one of the claimants. Below is a guide to what the case is (and is not) about and why it is so important.
The issues
The primary issue is about the legal means by which the UK government can notify the European Council of its intention to leave the EU under Article 50. The government maintains that it can make the notification by use of the so-called “royal prerogative”.
The High Court of England and Wales, however, declared last month that the notification could not be done by royal prerogative. The implication was that there would need to be an act of parliament. The hearing this week is an appeal by the government of that decision. The High Court decision was unanimous, and three judge bench consisted of the Lord Chief Justice, the Master of the Rolls, and the the leading public law judge, Lord Justice Sales (public law is the term used for the law which regulates what public bodies can and cannot do).
What influenced the High Court in particular was the notion that once the notification has been made, then a direct consequence will be that people (and legal persons such as companies) will lose EU rights that they otherwise would keep and be able to rely on. The judges decided that it is not open to the executive to extinguish such EU rights by use of the royal prerogative.
The Supreme Court appeal, however, will not be a mere re-run of the High Court case. There are two new issues which make the hearing more complex. The first is that the Supreme Court will also be hearing two references from courts in Northern Ireland, which are also dealing with cases about the Article 50 notification. The second is that the devolved governments of Scotland and Wales will intervene, with formal submissions about how the notification (and royal prerogative) should operate in the context of devolution. The Scottish, Welsh and Northern Irish aspects of the case go beyond the question of prerogative vs Westminster parliament, and raise issues about the extent the Article 50 notification procedure has to take account of devolution issues and, in respect of Northern Ireland, the Good Friday Agreement.
The hearing
The Supreme Court was only established in 2009. The court has appellate jurisdiction for the three constituent legal systems in the UK: England and Wales, Scotland, and Northern Ireland. Before 2009 such appeals were heard by the judicial committee of the House of Lords. All current eleven justices of the Supreme Court will hear the appeal. This has never happened before, and the court room has had to have been specially adapted to fit all the judges in. Of the eleven justices, eight come from England and Wales, two from Scotland, and one from Northern Ireland.
The hearing is scheduled to last four days. As the appeal has been brought by the government, the government’s barristers will speak first. The government’s legal team will be lead by Jeremy Wright QC, the attorney general and government minister. Most of the government’s case will be presented by James Eadie QC, an experienced public law specialist. Devolution legal points will be dealt with for the government by Lord Keen QC, the advocate general for Scotland.
The respondents to the appeal — who are for convenience known as the claimants — have two legal teams. The lead claimant’s barrister is Lord Pannick QC, regarded as the UK’s leading public law barrister. The various claimants and interested parties comprise those who will be affected by the decision: UK citizens who will lose EU rights, UK citizens in the EU, EU citizens in the UK, and so on.
All these permutations of affected parties mean that the appeal will cover anyone who may be affected by the Article 50 notification. There will also be senior barristers (or advocates, their Scottish equivalents) addressing the Supreme Court on behalf of the governments of Scotland, Wales, and Northern Ireland. It is hard to imagine a more wide-ranging constitutional case.
What the case is not about
If the government loses the Supreme Court case, a bill will need to be passed by Parliament, empowering the prime minister to make the Article 50 notification. This will have to be done soon to meet the prime minister’s March 2017 deadline, yet there is no reason to believe that the government will be unable to do this. Subject to one possibility (which I set out below) there is nothing in this week’s appeal which will necessarily delay any Article 50 notification.
This appeal, therefore, is not about blocking Brexit. The case is instead about the constitutionally correct manner in which the notification to leave the EU should be given. The case is ultimately about constitutional form and process, rather than the substance and merits of the Brexit decision. There is scope, of course, for MPs or peers to amend such Article 50 legislation— insisting, for example, that the government provide further details about its approach to the exit negotiations. The government would prefer not to have this accountability. If the government loses this appeal, Brexit can and will still happen and the judiciary is not trying to undermine it.
One possibility is that the case gets referred to the EU’s court, the European Court of Justice. If so, this would not be an appeal but a request by the Supreme Court for clarification on a disputed but unclear point of EU law. In this case that would probably be about whether the Article 50 notification can be revoked. If the notification can be withdrawn, then the extinction of EU rights would be less direct: there would have to be a further decision by the government in due course whether to revoke the notification that, in turn, can be challenged in the courts. The notification planned for March would not then have so much riding on it.
A reference to the ECJ would no doubt seem ironic and perhaps amusing in the circumstances of this particular case, especially if it is because of a point which would favour the government. The High Court case proceeded on the assumption that the Article 50 notification was irrevocable and conditional. Some legal scholars deny this, and if the government does shift its position on this (which would be attractive in terms of litigation tactics, if not politics) then such a reference is not fanciful. The problem would be this would put back the government’s timetable beyond March, as an reference would take a further nine or so months.
Taking back control
For many years, those in favour of the UK leaving the EU regularly framed their concerns as that it should be the UK parliament and the UK courts which should make fundamental decisions. and not their EU counterparts. This week’s appeal shows the important role of the UK courts and potentially the UK parliament (and the devolved governments) in dealing with constitutional matters. Some supporters of Brexit are anxious about the involvement of the courts and the potential involvement of the UK and devolved legislatures, seeing them as impediments which will delay or even frustrate the UK leaving the EU.
But if “taking back control” is to be done properly then the process should engage the wider UK organs of the state, and not just the executive. After all, it will be those organs of the state which will be responsible for ensuring the success of Brexit. In normative terms, therefore, there can be little doubt that the courts and the legislatures should be involved.
The question before the Supreme Court, however, is not a normative one but a positive one: what is the position as a matter of law? On one hand, the High Court decision and the submissions of the devolved governments would suggest that the government will lose the appeal; on the other hand, one should never underestimate the potency of the royal prerogative in domestic law.
The UK government has already accepted it may not win the appeal. There have been moves to prepare a short bill and to dampen expectations. This contingency planning is welcome and is in contrast to the all-or-nothing mentality which led the government to do almost no planning for what to do in the event of a Leave vote. On balance, the government has the harder job in this week’s appeal. But taking a step back, a few things are worth noticing and celebrating: a fundamental constitutional question dealing with the respective roles of the executive and parliament (and the devolved administrations) will be dealt with openly (with live-stream broadcasting) by the entire bench of the UK’s highest court, with all the legal cases of the parties published, and with claimants and interested parties who represent everybody who could be affected. And even if the government loses the appeal, there is nothing in the case which prevents the giving of effect to the Article 50 notification, and thereby to the referendum result. The legal issue to be decided is form not substance.
So the government cannot just get its way, even with a referendum result. The rule of law and the separation of powers still apply. The courts can still hold the government to account, on the application of those who will be adversely affected by what the government wants to do. The legal challenge will be heard in full glare of open justice.
This is what a working constitution looks like.
