Tuesday, 6 December 2016

U.K.: Brexit Court Case

The British government launched a Supreme Court battle on Monday over who has the power to trigger the formal process of leaving the European Union, seeking to overturn a legal ruling that could derail its Brexit strategy. The Hearing is due to last four days and for the first time in the Supreme Court's seven year history all 11 justices are sitting.

The High Court ruled last month that Prime Minister, Theresa May, could not trigger ''Article 50'' of the ''Lisbon Treaty'' and begin the sunset period of 2 years of Brexit talks with the 27 remaining EU members without parliamentarian backing. If the government wins at the Supreme Court, Prime Minister, Theresa May, could invoke ''Article 50'' by the end of March as planned. But if government loses, parliament could delay or put conditions on the process, and in theory even block it.

The government's lawyers started arguing that the High Court ruling was wrong that parliament had accepted before the referendum that ministers would use ''prerogative'' powers to implement its result. But the government's lawyers accept that Article 50(1) allows the UK to withdraw from the European Union with its own constitutional requirements. 


The government argument fails to establish the relationship between the Crown's prerogative, i.e. the residue of monarchical authority that is now exercised by ministers, and the doctrine of parliamentary sovereignty. On the one hand, it is an established feature of the UK constitution since 1688 that an Act of Parliament cannot be supplanted by the exercise of prerogative power. On the central issue, settled since 1688, the Crown cannot use prerogative to remove an Act of Parliament. On the other hand, it is equally established that the prerogative powers of the Crown cover international relations and the conclusion of treaties.

The government wishes to argue that the Crown has a prerogative power to authorise the UK's withdrawal from the EU, and that this power can only be taken away by express terms in an Act of Parliament. In the absence of express statutory words, the prerogative powers of the Crown over Article 50 remain intact. This argument is correct, but only with respect to rights and obligations created as matter of international law. As soon as individual rights protected by domestic law are affected, Parliament must be involved.

In relation to individual rights protected in domestic law that could be affected by the EU withdrawal, there are three categories: 1. Rights that were capable of replication in domestic law, 2. rights enjoyed by the UK nationals in other Members states, 3. rights that cannot be replicated in UK law and would be lost upon withdrawal.

In regard of the individual rights protected in domestic law that could be affected by the EU withdrawal: rights that capable of replication in domestic law and rights enjoyed by the UK nationals in other members states, there is nothing in principle to stop Parliament from enacting its provisions in domestic law. In regard of the individual rights protected in domestic law that cannot be replicated in UK law and would be lost upon withdrawal, the government agrees that those rights would irretrievably be lost upon withdrawal.

Many legal experts have predicted that the government would lose its appeal. First, the notification of the European Council under Article 50 could be reversed, then the Parliament must be involved. And since the question involves a question of the EU Treaty law, the final answer could only be given by the Court of Justice of the EU. Second, by agreeing that the Article 50 notification would inevitably lead to the loss of some individual rights, rights that cannot be replicated in domestic law, the government has already lost its appeal.

Last month High Court ruling did throw a spanner in the works of the government's Brexit strategy. But its focus was strictly constitutional, not political. The court expressed no opinion on whether Article 50 should be triggered. The only question it examined was whether, as matter of the UK constitutional law, the Crown acting through the government, is entitled to use prerogative powers to trigger Article 50 in order to cease to be a member of the European Union.

By Guylain Gustave Moke
International Affairs Expert
Political Analyst/Author

Photo Credit: AFP-London photo: