Brexit, Democracy and the Rule of Law

The decision of the High Court in London this week was a ruling not on whether Brexit should happen, but on how it can happen lawfully. Some of the press coverage of the decision has been deplorable. There is nothing–nothing at all–in the court’s judgment to block the will of the people, to reverse the result of the referendum, or to get in the way of Brexit. Nor is there anything inappropriate in turning to the courts to determine how Brexit can proceed in accordance with the rule of law. To rule on such matters is emphatically the courts’ job. For 25 years I have been among the first to criticise judicial rulings that trespass into terrain better left to politicians and Parliament. But this is no such case. The court has done nothing improper and those who sit idly by whilst others who should know better castigate the judges for doing their job should be ashamed of themselves. We are a country that abides by the rule of law, and we should act like it.

All of that said, as a lawyer I think the court’s ruling is wrong. What follows is a pretty technical legal analysis of why I think so. This is not a party political intervention, and nor is anything in this post informed by the fact that on 23 June I voted to remain in the EU. I voted remain because I thought that David Cameron’s renegotiation of the UK’s terms of membership was pretty good. I have not changed my mind about that, albeit that I think the UK must now leave the EU because a clear majority of the British people said so in the referendum. There are aspects of the decision made on 23 June that worry me (notably over the economic uncertainty caused by not knowing what our future relationship with the single market is going to be) and other aspects of that decision that I positively celebrate (such as the fact that we will be free of the Court of Justice’s highly problematic case-law, which has often completely failed to adhere to what I would recognise as the rule of law). But all these reflections are completely immaterial to what I think of the High Court’s ruling in the Article 50 case on Thursday.

The issue to be resolved in the case is simple to state. It is whether government ministers have the legal power to trigger Article 50 (the formal mechanism by which a Member State leaves the European Union). This is a question of UK constitutional law. It is not a question of European law. It is a question of UK constitutional law that has a single UK-wide answer. It is not a matter in respect of which English law, Scots law and Northern Irish law have different answers.

If the answer to the question is yes, the power that ministers have to trigger Article 50 would be a prerogative power of the Crown–the prerogative power to make and unmake treaties, and to conduct international relations. If the answer is no, Parliament would have to pass a statute to confer such a power on ministers. So the question is whether ministers can trigger the beginning of the UK’s formal departure from the European Union without further parliamentary enactment. The question is not whether ministers could conclude that process without further parliamentary enactment. (The answer to that question would clearly be no.) In other words, the questions is not “does Parliament have to be involved in the Brexit process”. Of course Parliament has to be involved. The question is a much narrower one: “does Parliament have to be involved before the Brexit process may be formally commenced under Article 50?”.

Now, the first thing to say about ministers triggering Article 50 is that they are not doing it simply because leaving the EU is now government policy. They are doing it because this was the clear instruction of the British people in the referendum on 23 June. There are many things that the referendum did not decide. It did not decide the extent to which the UK will in the future participate in the single market. It did not decide whether the UK should remain within the customs union. It did not decide that there can be no future pooling or sharing of sovereignty over our border controls. It decided none of these things. It decided simply–no more and no less–that the UK should cease to be a Member State of the European Union. It decided nothing about what future relationship with the EU the UK should have (save that it should no longer be a Member State). There is one and only one way in which a Member State may lawfully leave the European Union. That is by that state triggering Article 50. So the result on 23 June was a direct instruction that Article 50 be triggered, because it was a direct instruction that the UK should leave the EU (and it was known when that instruction was issued that the only lawful means of achieving this is under Article 50).

The second thing to say about this is that the British people were able to give ministers this clear instruction because–and only because–Parliament enacted a law that authorised the referendum to be held (the European Union Referendum Act 2015). It wasn’t government ministers that authorised the referendum: it was Parliament.

My first problem with the High Court’s judgment is that it ignores all these facts. Indeed, the fact that ministers wish to trigger Article 50 early in 2017 because and only because they have been instructed to do so by the British people is overlooked in the judgment. This is a stark omission. Ministers’ exercise of the prerogative to trigger Article 50 is no ordinary executive act: it is an act ministers have been told to undertake in a referendum authorised by Act of Parliament.

My second problem with the judgment is that it mischaracterises the European Communities Act 1972 (“ECA”). This is the Act that gives effect in the legal systems of the United Kingdom to the rights and obligations we have under the law of the European Union. Only Parliament could repeal this legislation. Triggering Article 50 would not repeal it. Ministers could not repeal it. The ECA is, without doubt, one of the most significant enactments ever passed by the United Kingdom Parliament.

The legal core of the court’s ruling is that the European Communities Act prevents ministers from triggering Article 50. This is the ruling I consider to be incorrect as a matter of strict legal analysis. The ruling is arrived at via three main steps, as follows: (1) under the ECA, UK citizens enjoy rights and obligations arising under EU law; (2) under our constitutional rules, ministers may not take away our statutory rights unless Parliament has expressly authorised them to do so; (3) under the ECA there is no express provision made about withdrawal from the EU. There is therefore no express provision in the Act about ministers removing from our legal systems rights we enjoy under EU law. It follows, says the court, that the 1972 Parliament must be taken to have intended that the ECA it passed in that year was meant to deny to future ministers the prerogative power to withdraw the UK from the EU.

Each step of this legal reasoning is flawed, in my view. First, the legal basis of the rights and obligations we enjoy under EU law is EU law, not the ECA. The ECA is merely the vehicle by which those rights and obligations are translated into enforceable rights and obligations in the legal systems of England and Wales, Scotland, and Northern Ireland. Those rights and obligations have force in the United Kingdom because and only because Parliament has said so in the ECA (so much was confirmed in the European Union Act 2011, s. 18). But this does not mean that the underlying source of those rights and obligations is the ECA itself–the underlying source is the EU–and the ECA is the legal vehicle by which those rights and obligations are translated into the UK’s legal systems.

Secondly, our constitutional rules about ministers not being able to dilute or diminish statutory rights without express authorisation have no application here. Triggering Article 50 will not dilute or diminish anyone’s statutory rights. It will commence the formal legal process by which the UK leaves the EU, no more and no less. What happens to the rights and obligations we possess in the UK by virtue of our EU membership will be a matter for Parliament to determine in due course. And it is worth noting, of course, that Prime Minister Theresa May has said that she will invite Parliament to legislate to maintain in force in the UK all the substantive rights and obligations we currently enjoy under EU law. It is government policy that workers’ rights will remain as now. Rights to equal pay likewise. Social protections will continue. And so on. But they will continue as UK rights and obligations, not as EU rights and obligations.

Our constitutional rules about ministers not being able to dilute or diminish rights without express statutory authorisation are relatively recent. The key sources of these rules are two House of Lords cases decided in 1998 and 2000 (Pierson and Simms). Herein lies the fatal flaw in the third step of the High Court’s reasoning: how can the 1972 Parliament coherently be said to have intended an outcome that was not established in our constitutional law until nearly thirty years later? A ruling that relies on the proposition that the European Communities Act must be interpreted as if its authors intended their work to prevent ministers from exercising their prerogative powers over the making and unmaking of treaties is one that is inevitably anachronistic. It is therefore an irrational conclusion and, for that reason, there must surely be at least the prospect that the UK Supreme Court will in time overturn this week’s High Court ruling.

Postscript. Anyone with any knowledge of my views of the relationship of prerogative to statutory power will know that I take no pleasure in the conclusion that the High Court is wrong. I am no lover of prerogative power. I would dearly like our constitution to provide that in the exercise of such momentous powers as the triggering of Article 50 UK ministers must first seek and obtain clear parliamentary authorisation (and not merely clear popular authorisation). But, whatever I would like our constitutional law to be is immaterial to what I think our constitutional law is. And, however much I may wish it were otherwise, I am of the view that it would be perfectly lawful for UK ministers to trigger Article 50 under the prerogative and that the High Court was mistaken to rule to the contrary on Thursday.








26 thoughts on “Brexit, Democracy and the Rule of Law

  1. Hi Adam, nice post! But I have two points.

    First, you write that “Triggering Article 50 will not dilute or diminish anyone’s statutory rights. It will commence the formal legal process by which the UK leaves the EU, no more and no less.”

    That is incorrect. The govt conceded two points: triggering Art 50 is i) irrevocable (which they didn’t have to since the point is contested); ii) will lead to the irretrievable loss of category (iii) rights (e.g. to vote in European elections). It follows that the Art 50 notification will directly result in the loss of individual rights.

    Second, you claim that “Our constitutional rules about ministers not being able to dilute or diminish rights without express statutory authorisation are relatively recent. The key sources of these rules are two House of Lords cases decided in 1998 and 2000 (Pierson and Simms).”

    But on this very point the court relied on The Case of Proclamations (1610), The Zamora (1916), and De Keyser’s Royal Hotel (1920). And Pierson and Simms support the claimants’ argument that the loss of individual rights requires prior sanction by Parliament.

    In sum, the core of the case is not about the ECA 1972, but about the loss of political rights in category (iii). Since the govt admitted to that loss, the judges had no choice but to find against the govt. In fact, the govt would have lost this case without any opposition! If you think the case was wrongly decided, what you are really saying is that it should have been argued differently. But the role of judges is not to do the govt’s work. The senseless disregard for taxpayers’ money can only be lamented.

    All the best,


      • The UK Government and the EU Commission take the view that it is not reversible. However, comments by legal experts have suggested that this is not the case. The problem is, however, that this is a matter that would ultimately be decided by the ECJ if it were ever pressed, and on past form they will take whatever view the EU establishment demand of them at the time.

    • Thanks so much, Jo. Thoughtful and to the point as always. But I disagree (I think) for the following reasons.

      1. I was careful to write that triggering A50 will not of itself diminish anyone’s STATUTORY rights; I do not consider that category (iii) rights are statutory; they are rights under the Treaty; they find force in the UK only by means of s.2 ECA which speaks of rights and obligations FROM TIME TO TIME arising; if the prerogative can be used to increase these rights (by ministers ratifying Treaty revisions) why can it not be used by those same ministers to diminish the rights which the Crown chooses to be bound by, given the “from time to time” wording of s.2?

      2. Proclamations, Zamora and De Keyser are not on the same point as Pierson and Simms. Proclamations was a decision about the power of the common law courts to determine the scope of the prerogative. De Keyser was about prerogative powers going “into abeyance” where statute overlaps. There is no overlap, as such, here. Parliament has not passed legislation seeking to put into abeyance the Crown’s (ie ministers’) powers to negotiate and ratify treaties.

      Hope that makes sense.
      Cheers for now,

      • Dear Professor, I’m not sure that the distinction you are making between rights and statutory rights is relevant here. I understand statutory rights to be those based on laws of Parliament. In respect of category iii) rights, the fact that they derived from statute was not in dispute between the two parties.
        Secondly, I can’t see the point of your characterization of the ECA as ‘merely the vehicle’ by which EU law becomes statutory in the UK. It may be ‘merely’ the vehicle but it’s still the basis on which the law becomes applicable in the UK; reference to a remoter basis has no bearing on that fact. Thank you for your time, Alex D

  2. Thanks Adam, for this insight and for setting the record straight. I hoped you would and pleased you have. Like you, I voted to Remain in the Summer, regret but accept the outcome of the Referendum and was also concerned about this judgement.
    When reading the judgement three things, which appear to have been missed, struck me. Firstly, triggering Article 50 is an EU process, which was known to be the process when the Referendum was called. Triggering A50 was an inevitable outcome of the Referendum, if the result was to leave. This is the situation which was set up and approved by Parliament. So Parliament has effectively already given consent to triggering A50. It knew this situation would arise in the event of a leave vote, when Parliament commissioned the Referendum, and no body is seriously suggesting that A50 should not be triggered. In the unlikely event both the judgement stands and Parliament voted against triggering A50 there would be more that fireworks under Westminster Palace.
    Secondly, triggering A50 and the subsequent UK / EU negotiations which will follow is entirely the normal role for the Executive. The ECA 72 came about because the Executive negotiated international agreements which resulted in the need for and passing of the Act. The UK’s exit process from the EU will and should follow the same route. It should therefore be in the hands of the Executive to trigger A50. It is timing decision, not issue of principle. And, it is not an opportunity for some politicians to leverage influence over the decision, as some seem to expect.
    Thirdly, Parliament will, in time, be required to pass a law to terminate or otherwise the ECA 72. So Parliament will have a say and approve the the exit from from the EU, in the normal way. Indeed, we can not leave the EU without Parliament passing a law to leave, to terminate the ECA72 and related statutes, and to put in to effect any other legislative changes that are needed. No doubt Parliament will exercise its role of holding the Executive to account on the outcome of its negotiations with the EU.
    I have one other point of concern, which is about the action, not the judgement. I have concerns that one or a group of wealthy individuals can raise this type of action. Most people (aka. voters) could not afford to bring such a case. There is a danger that the impression left here is of justice for the wealthy few. It this action had been raised by a political group or Parliament itself I would be far more comfortable with this issue being tested in court.

  3. Put like that, I’m forced to agree.

    Parliament is Supreme, but Parliament hasnt directed the power away.

    Could it be argued that the ECA repeal/great repeal bil is Parliaments “vote”? Parliament rejecting that would surely trigger such a constitutional crisis that any article 50 negotiation would have to be restarted?

    • The Court specifically stated that it was the triggering of article 50 that required Parliamentary approval.

      In any event, if article 50 is triggered (and it is assumed it is not reversible) if the UK Parliament later refused to repeal the ECA it would not extend our EU membership. This will terminate two years later. I assume the effect would be that the ECA would still legally operate to transfer EU law into UK law, but as the UK are no longer parties to the EU treaties there would be no such transfer of law, leaving the ECA intact but essentially void of effect.

  4. “And it is worth noting, of course, that Prime Minister Theresa May has said that she will invite Parliament to legislate to maintain in force in the UK all the substantive rights and obligations we currently enjoy under EU law.”

    Is it? From a legal perspective, it would seem to be irrelevant. The fact that the current prime minister made a non-binding to do this at some point would seem to have no relevance in this case.

    Also, given that Article 50 is irrevocable, surely saying “No rights are lost at time of triggering” implies that as long as the government puts a delay in any rights loss, they can strip any rights without recourse to Parliament.

    Of course, I am not a lawyer, so I’d be delighted to be corrected.

  5. It’s fairly simple: the government have been given a mandate and it is now up to the “establishment” to do what the people have instructed them to do and in my view not doing it is treason.

    On the technical point, any reasonable judge would have concluded that “without the consent of parliament” must mean within a democracy “without the consent of parliament OR the will of the people expressed in a referendum”.

    • >>>On the technical point, any reasonable judge would have concluded that “without the consent of parliament” must mean within a democracy “without the consent of parliament OR the will of the people expressed in a referendum”.

      Well no, because there is nothing in the constitution to give the people any sovereign power. Power is the Parliament’s to dole out. We are not the United States of America.

  6. I am not a legal expert, but I have a question for which I would appreciate an opinion. I read the judgement to say that the ECA did not provide the UK Government with the right to execute Royal Prerogative in relation to rights that were accrued to UK citizens under the ECA, and therefore only Parliament could start the process of leaving the EU.

    However, when the Lisbon Treaty was passed, it was passed specifically as an amendment to the ECA via the European Union (Amendment) Act 2008. It was this amendment that recognised Article 50 in UK law. Therefore, surely UK Parliament have already given their consent to the use of Article 50 by their Government. The judgement states that “the text of the 1972 Act does not support [the use of prerogative powers]” and further refers to the “absence of any entitlement to change domestic law by the exercise of prerogative powers”; however, the Court has not addressed the amendment of the ECA which recognised the creation of the Article 50 procedure. It seems impossible to me to deny that the incorporation of article 50 into UK law in 2008 did not, in fact, infer that the Government could in fact use Prerogative powers to use it; there is certainly no suggestion that this is not case. Article 50 clearly DOES create provide an “entitlement to change domestic law” in favour of the Government through a withdrawal from the EU.

    Can anyone provide an analysis of this issue?

    • Article 50 requires that the decision to leave the EU must have been taken in accordance with the member state’s constitutional requirements. The UK constitution does not permit the government to take away rights given to the people by Parliament. Therefore, the decision to leave the EU cannot be taken by the government, only by Parliament. Had Parliament decided before the referendum that it would be bound by the referendum result, then the referendum would constitute the decision. But Parliament did not choose to be so bound, and in fact explicitly rejected an amendment to make the referendum result binding.

  7. Pingback: Brexit, Democracy and the Rule of Law | Verfassungsblog

  8. Although you take issue with the law lords, this piece gives them stronger support than does the Lord Chancellor’s statement! Well done and thank you. D

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  12. I think part of the problem is that the EU, like the EC and EEC before it, is essentially a Treaty Organisation, like NATO or the UN (hence the constant references back to the several Treaties as ultimate justification). The EU is unique (even compared to the UN) in that it looks, is now structured, behaves and acts like a government at European and latterly world level, but it it’s still just an organisation founded by multilateral treaties, and all the rights, obligations etc derive solely from accession to those treaties by the members.

    Perhaps the situation might have been different had its Constitution not foundered (including the predecessor of Art. 50) and been replaced by another Treaty. Presumably adherence to the Constitution might have had non-treaty like form (in the same way that US states and Canadian provinces are not bound by treaty to the others, but by their constitutions, and the association, rights etc derive from those documents).

    But because it looks like a government people assume the association is more like the latter than the former, and are surprised that indeed it’s really just a Treaty, and the rights etc flow in from that, and are dependent on it. Also, treaties have several parties, and any party might terminate those rights, least as far as its concerned.

    The right of freedom of movement of workers (and dependents) and freedom of establishment etc under the Citizens Directive shows the multi-party nature. It allows me as a UK citizen and thus an EU citizen to move to Italy and set up business there. That right isn’t a UK right, but a Treaty right asserted in Italy under Italian immigration law, which is possible because Italy has some similar legal provision as ECA1972 to give effect to those rights as an EU member. If either the UK *or Italy* withdraws from the Treaties, those rights vanish. (Obviously we’re aware of that at some level because of the fuss about EU27 people in UK and vice-versa.) Indeed in the other direction, the documents provided (if they bother) for EU27/EEA/Swiss to claim Permanent Residence in the UK explicitly state that the applicant is “asserting his/her Treaty Rights” under the relevant treaties.

  13. all of this is very informing and good but how is it of any use unless the Supreme Court judges actually see it?

  14. Top legal people disagree about this – presumably it is opinion, not fact – what is wrong with asking the top legal body in the land? Apart from it being embarrassing that the Government had not planned for this possible outcome of a vote for Brexit.

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  16. I thought your piece extremely good and a delight to read stylistically! I apologise deeply for commenting at such length but I think you may have overlooked at most important point.

    You say “ministers [are] triggering Article 50 … because this was the clear instruction of the British people in the referendum on 23 June” but surely it is essential to the High Court’s case that, from a legal as opposed to a political point of view, the Referendum was “advisory” and not binding as is implied by your word “instruction”.

    Therefore, is it not the case that, to argue against the correctness of the High Court judgement, it is necessary also to show that the Referendum was indeed a binding instruction? The judges’ arguments that it was only advisory refer to (a) the fact that referendums are normally advisory and that therefore without “very clear language to the contrary” (para 106 of the Judgement) this one must be assumed to be advisory, (b) the Parliamentary briefing to MPs said it was advisory (para 107), and (c) there were so many things to be decided in leaving the EU that it could only be advisory (para 107).

    In the first instance it would appear that the judges were at fault, especially in a case as important as this, in failing to consider the legal arguments that the Referendum was more than advisory? The judges knew that the Referendum campaign had been fought, on both sides, on the unambiguous understanding that it was a make or break decision and that that is what was in the minds of 33 million people on going into the polling booths. In these circumstances, was it not incumbent on the judges to explore this as a legal issue from all angles rather than dismiss it in a couple of short paragraphs tagged onto the end of the Judgement?

    The question then is what would such an exploration have revealed? I would suggest that the key issue is whether as per Pepper vs Hart (1992) the question of Parliament’s purpose in enacting the Referendum Act should be taken into account. If it can be shown beyond peradventure that it was indeed Parliament’s intention that the result of the Referendum be binding, then would that not have greater force than the arguments put forward in paragraphs 106 and 107?

    It seems to me there are three pertinent points.

    Firstly, during the various Parliamentary debates it was made clear by both sides of the House that the result would be treated as binding. For example, in his opening remarks to the debate on the 2nd Reading of the Bill on 9th June 2015 the Foreign Secretary said of the Bill: “It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017.” That view was endorsed by Hilary Benn in his response and not challenged by others.

    Secondly, after the Government put out its leaflet to all households in April 2016 stating that “This is your decision”, Parliament had ample opportunity to assert that it was not and that it was in fact Parliament’s decision.

    Thirdly, throughout the campaign both sides presented the vote constantly and consistently as the people’s, not Parliament’s, decision. Again, Parliament was sitting for much of this time and, if it objected to this universal characterisation of the Referendum, it could have registered its disagreement.

    In short, I believe you are right in saying that the result of the Referendum was an “instruction” but is it not key to the whole case that this be established in law?

  17. Very nicely written and thought out piece, thank you for adding to my knowledge of this debate. I am not a lawyer and so make no legal argument but I do dispute that what you assert as facts the court ignored are actually facts. Particularly that triggering article 50 does not repeal any UK legislation; triggering article 50 requires ECA to be in some part repealed before the process of Brexit can be concluded as certainly as it would be certain that if I set the timer on a reliable time bomb I would cause an explosion and commit a crime. The time delay is not relevant, the act causes the event. Secondly that the people instructed Brexit; all referendums including this one are advisory only. This is not only because of the primacy of parliament but because we do not have minimum turn out or margin requirements; it must be decided after a referendum what weight the advice given is to be accorded. The winning decision in the referendum got the votes of roughly one third of eligible voters – a minority. This is absolutely not an instruction, it is advice and factors like turn out and margin must be taken into account before parliament decides whether that advice carries the weight of an instruction.

    • Agreed. What if it had been 25% vs 21% of those who voted, or even 12% vs 8% – when would the result have not resulted in Brexit? The idea that the result as it was is binding and that parliament does not need to have a say seems very deeply set – and yet most of the electorate did not vote for it. I say again – what is wrong with the best legal minds in the land deciding the way forward? When we are ill we want the best medical minds to decide the way forward – only then of course time/cost/opportunity are issues – not relevant in this case.

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