The English High Court gave its decision last week in a landmark constitutional ruling which not only reinforced the notion of parliamentary democracy, but also in the process threw into doubt the timing and potentially the character, of “Brexit”.

It was agreed between the parties in the case (and therefore was not ruled upon) that the triggering of Article 50(2), which commences the formal process for the UK’s departure from the EU, once commenced was potentially irreversible.  It was decided that this would lead to a loss of legal rights to citizens of the United Kingdom.  Whilst it is a feature of constitutional law in the UK that the executive has prerogative powers to enter into and withdraw from international treaties, the fact that domestic law and rights would be directly affected by the decision to withdraw meant that this could not happen without parliamentary sanction.

The government is to appeal the decision, and will take its appeal to the UK Supreme Court.  Dates of 7 and 8 December 2016 have been scheduled with a full court (ie. all the members of the UKSC) sitting.

The bench of three judges has been the subject of vituperative criticism, partly on the basis that some who wish the UK to leave the EU are concerned that the decision may delay or even reverse the “will of the people” as expressed in the advisory referendum. If it is ultimately decided that primary legislation is required, there is certainly the potential for such a process to be difficult, complex and fraught.  Fundamental issues of the nature of parliamentary democracy arise, and these will no doubt be the subject of careful consideration in the UKSC in December.

1.The case

Article 50 sets out the process where a member state wishes to withdraw from the EU. It is down to each member state to decide on the constitutional position within it.  The triggering of the procedure leads to a two-year timeline at the end of which the member state must leave the EU (subject to any extension by agreement of all member states).

It would have been open to the court to take the view that since it is accepted that the Executive has prerogative power to enter into and withdraw from international treaties, triggering withdrawal from the EU was not something which required prior parliamentary approval.

The court decided, however, that it was not within the prerogative powers of the Executive to trigger a withdrawal from the EU, given the direct effect on the rights of UK citizens.  The referendum was always noted as being an “advisory referendum” and so it fell to the UK Parliament to take notice, and decide what to do.

The court did not make a formal order, instead suggesting that the parties should read its decision and then make further submissions on what form the court order should take.  This has now been superseded by the marking of an appeal to the UKSC.

2.Scotland – the Treaty of Union of 1707 and the Scotland Act 2016

Submissions were made to the court about the effect of the 1707 Act of Union (in terms of which Scotland and England formed the United Kingdom of Great Britain). In addition, there is at least a question as to whether the effect of the 2016 Act is to create rights for the Scottish Parliament which are relevant to Brexit. The court decided it need not to respond to the submissons, on the basis that it had already made a primary decision that parliamentary sovereignty was impinged upon if Article 50 were triggered by Royal Prerogative, and so it did not need to decide the Scottish question.

It has previously been argued in Scottish constitutional law cases that the 1707 Treaty of Union is the true grundnorm” (ie. the basis from which constitutional law in Scotland springs), as opposed to the English constitutional position as espoused in Dicey’s Law of the Constitution (1885).  The Scottish question could yet become a factor in this potentially tortuous matter, since the Scottish Government is believed to be considering whether to participate in the UKSC hearing.

3.Comments

The absence of a written constitution (whether a Bill of Rights or otherwise) and the basis of UK constitutional principles, resting on common law and convention, is brought into focus in this case.  The political pressure on the judiciary (the subject heading above is taken from – an Ibsen play and - a newspaper headline attacking the judges), and the UK Parliament, is likely only to increase as this matter proceeds.  It is at this stage too early to say what effect the case will have on the approach to be taken to Brexit.  It also remains at least theoretically possible that there may be some form of appeal to the Court of Justice of the European Union, which would no doubt provide yet further controversy (and delay).  In addition, an intervening UK general election is not something which can be entirely discounted.

As to the practical effects on business, whilst the pound rose against the dollar on the day which the judgement was issued (albeit the narrowing of the US presidential race was also no doubt a factor), business in the United Kingdom continues to face uncertainty.  It is often said that uncertainty presents opportunities for those prepared to take risks, but it will only be when the Brexit path has been fully swept and the future direction of the United Kingdom becomes clearer, that businesses will be able to take account of it more meaningfully in making investment and other decisions.

Separately, the attacks on the judiciary have themselves been subjected to stinging criticism (see for example the full-page editorial in The Observer on 6 November 2016).  Much more ink is likely to be spilt in the coming weeks. Issues of such magnitude raise challenging questions relating to the rule of law and the principles of parliamentary democracy, not to mention future economic well-being. There is much at stake.

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