Brexit and the Safeguard of EU Transnational Rights - Act II The Supreme Court’s Position

Francesca Strumia, Lecturer in Law, University of Sheffield

This post is a follow-up to the post on the High Court’s position in Miller on the safeguard of EU Law transnational rights. It considers what the Supreme Court judgment makes of the High Court position in this respect, and what EU law questions it implies as a result. The question of transnational rights has not lost momentum for two reasons. First, beyond the immediate implications for the few million EU nationals in the UK, and UK nationals in the EU, whose lives stand to be disrupted by Brexit, it points to the very fabric of the citizens’ individual rights in the EU and thus to the nature of EU law. Withdrawal of a Member State, whilst expressly provided for in the Treaties and whilst a legitimate sovereign decision under international law, risks pitting two fundamental values underpinning the European Union order one against the other: democracy (as expressed by the will of majorities or arguable majorities at the national level) and individual rights that cut across borders. Second, and relatedly, it is a question that the CJEU will likely have to address if the quandaries surrounding withdrawal ultimately reach its docket, as is expected through the planned litigation in Irish courts.

The High Court in November flirted with the question of the safeguard of transnational rights, as I analyzed in the previous post. The Supreme Court judgment does not address the question directly, let alone answer it. Its central point is that withdrawal of the UK from the EU, by resulting in removal of EU law as a source of law, will induce a fundamental change in the UK’s constitutional arrangements. Such a momentous change cannot be triggered by prerogative and requires an act of Parliament. In weaving this argument, the Supreme Court judgment bears on the problem of EU transnational rights in two respects. First, directly, because other than the High Court, it suggests that safeguard of EU law’s transnational rights is not necessarily within the remit of Parliament. Second, indirectly, because it engages with the special nature of the EU Treaties and uses such specialty as a foundation for its argument. I will consider each aspect in turn.

From the first perspective, the Supreme Court recuperates the High Court’s analysis of the EU law rights that have gained domestic law status and that withdrawal will affect: rights capable of replication in UK domestic law, rights derived by UK nationals in other Member States, and ‘club membership rights’ such as rights of participation in EU institutions (par. 69-73). The High Court had suggested that even rights in the second category, albeit harder to characterize as domestic law, were intended by Parliament as ‘wider rights of British citizens’, and hence could not be removed by ministers exercising the prerogative. 

The Supreme Court focuses on the first category and eschews the other two. Its argument in this respect is that if the claimants cannot rely on loss of rights in the first category – that best fit the notion of domestic law – to support their argument against the use of the prerogative, even less can they rely on loss of rights in the other two – that rather embrace a set of transnational rights –. And if they can rely on loss of rights in the first category, then there is no need to engage the other two. So transnational rights, with which the High Court had timidly engaged, are gently pushed out of the way of the constitutional question at the heart of the judgment.

The gist of the argument through which the Supreme Court solves that constitutional question is in the specialty of the EU Treaties. And here comes the second aspect. In the normal course of things – the judgment recalls – the royal prerogative covers the making and unmaking of treaties. This is on the assumption that the power to make and unmake treaties does not affect domestic law. 

That assumption rests in turn on two propositions: that treaties take effect in international law and are not governed by domestic law; and that they do not create or alter domestic law and rights. (par. 54-56). However the EU Treaties are exceptional. They do not only concern international relations, but they are a source of domestic law and of domestic legal rights (par. 86); their nature is ‘unusual’ (par. 88); and they are ‘unique in their legislative and constitutional implications’ (par. 90). This Supreme Court argument on the exceptionalism of the EU Treaties, whilst remaining in part undefined as Professor Elliott notes in his post, echoes one of the landmark arguments of the CJEU. The specialty of the EU Treaties, according to the CJEU, is in that they constitute a ‘new legal order of international law’. The subjects of this order comprise ‘not only member states but also their nationals’. And ‘community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage’. (Van Gend en Loos). 

Nothing new for anyone remotely acquainted with EU law. The novelty is in the new shades that these arguments take when indirectly recalled by the UK Supreme Court in the context of withdrawal of a Member State. How are the rights and obligations of the Member States that the EU Treaties enshrine on the international level – including the right to withdraw from the Treaties – to be reconciled with the rights that this new legal order has made part of the citizens’ legal heritage even ‘independently of the legislation of the Member States’ (in the words of the CJEU)? That, is a question of EU law. And some of those rights – by the way- are not domestic law rights. As Lord Reed makes clear in his dissent (par. 218), there are elements of EU law that depend on reciprocal arrangements with other Member States or on the participation of EU institutions. Transnational rights come back through the side door.

This underlying EU law question that the Supreme Court judgment just hints to did not make it to the CJEU on this occasion. However a version of it may still make it to Luxembourg in the twists and turns of the other planned proceedings. The question has systemic, theoretical and practical nuances. Systemic, because it calls for identifying the checks and balances that may safeguard, in the new legal order that is EU law, the competing interests of national majorities and transnational minorities. Theoretical, because on its answer depend the chances of ever taking transnational rights seriously again. And practical, in terms of the identification of the legal frames that may safeguard transnational rights in the context of EU withdrawal, both within EU law (duty of sincere cooperation?) and beyond (does a host Member State ever become, for instance, one’s ‘own country’ within the meaning of article 12 of the International Covenant on Civil and Political Rights?). 

Ultimately, the potential question for the CJEU addresses the conundrum that was exposed at the beginning and that explains the discomfort that Brexit causes beyond its own contingencies: how to square domestic democratic choices underpinning the exercise of Member States’ rights and obligations at the international level with individual transnational rights that the EU special legal order has long promised. At stake are the prospects of the most special creature that the 20th century international legal order has bred.

Barnard & Peers: chapter 27

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The judgment in Miller: Representative Democracy Strikes Back

Professor Steve Peers

Yesterday the UK’s Supreme Court gave its long-awaited judgment in the case of Miller (and a parallel Northern Ireland case), concerning the process of the UK leaving the EU. There’s already a detailed analysis of the constitutional law aspects by Professor Mark Elliott here. So my post will summarise the key elements of the judgment, and put it into the broader context of the Brexit process and the role of Parliament.

There are two main issues in the case: the role of Parliament in triggering the Article 50 process, and the role of devolved legislatures. Like the Supreme Court, I’ll take these two points in turn.

Role of Parliament

The Supreme Court, like the High Court ruling in Miller, began by pointing out that it was not ruling on the merits of Brexit, or on any the substantive details of how it would take place. It was only ruling on which political bodies in the UK have the power to send the Article 50 notice to the European Union, thereby starting the clock ticking on the timetable for Brexit. The central question in the case was whether the government could start the process, by means of the ancient ‘Royal prerogative’, or whether some action by Parliament was also necessary.

While the Royal prerogative traditionally gives the British executive power to decide (among other things) on the negotiation and ratification of treaties, and the withdrawal from such treaties, international treaties have no effect in domestic law without an Act of Parliament to give them effect.  In general, the royal prerogative cannot be used to confer rights or remove rights of individuals. Given that the UK’s EU membership is largely regulated by an Act of Parliament – namely the European Communities Act – does it therefore follow that an Act of Parliament (or some other form of consent by Parliament) is necessary to authorise the government to begin the process of removing those rights?

The Supreme Court ruled by a majority (8-3) that Parliamentary consent was indeed necessary. It did so by pointing to the particular nature of EU law – a ‘dynamic’ process of new law-making by EU institutions, which takes effect as part of the domestic law of the UK by means of (primarily) the European Communities Act.  

In reaching this conclusion, the Supreme Court touched on a number of important points. Most significantly, it expressly stated that the judges were not deciding the question of whether an Article 50 notice could be revoked after it was sent, or whether any conditions could be attached to it (para 26). This compares to the High Court, which had accepted the agreement between the parties that the notice to withdraw from the EU could not be revoked.  

This is significant because some would like Parliament or the public to consider whether to withdraw the Article 50 notice, with the result that the UK remains in the EU, when the terms of the final agreement to leave are known. That objective is obviously not feasible in principle unless Article 50 is indeed revocable – although there might be another route to the same end: an indefinite suspension of the two-year time limit for leaving the EU.

A case will soon be brought before the Irish courts on this point, seeking to obtain a reference to the ECJ to clarify the issue. The Irish courts – or the courts of any other Member State – now need not be concerned by any possible awkwardness stemming from taking a different view from the UK courts on this issue. Furthermore, if the revocability issue is somehow brought before a UK court, any lower court can see that the Supreme Court has deliberately left the issue open, and so can consider the issue afresh.  

Next, the Supreme Court provided a neat – if belated – answer to the argument that EU law membership has rescinded parliamentary sovereignty. It observes (paras 60 and 66) that EU law only applies in the UK as a matter of domestic law because Parliament had agreed to this in the European Communities Act. It followed that Parliament could always curtail or abolish this domestic effect of EU law, if it chose.

The Supreme Court also ruled that Parliamentary involvement in converting EU law into British law, by replacing the European Communities Act with a planned ‘Great Repeal Act’, was not sufficient to substitute for the role it should have in triggering the Article 50 process (para 94). Its discussion of the European Union Act 2011 (para 111) does not address head on the argument some have made that this act requires a further referendum before leaving the EU. For a number of reasons, the judges confirm that the referendum result is not legally binding – although they also acknowledge its political significance (leading up to para 125). Finally, it makes clear that legislation (ie an Act of Parliament) is required to trigger Article 50 (para 123). A parliamentary motion won’t do – meaning that parliament will have more chance to influence the result.

       

Devolved legislatures

What about the position of the UK’s devolved legislatures, in Scotland, Northern Ireland and Wales? First, the Supreme Court ruled that those provisions of the Westminster legislation setting up these bodies which require them to act in accordance with EU law do not require those legislatures’ consent to the UK withdrawing from the EU. Secondly, it ruled that the ‘Sewel Convention’ – the informal constitutional rule that Westminster will not normally legislate in areas of devolved powers without devolved legislatures’ approval – was not a legally binding rule. Finally, it also ruled that the Good Friday Agreement did not address the Brexit issue.

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What does the judgment mean for the Brexit process, and for parliamentary democracy more generally? On Brexit, it means that the government needs Parliament to adopt an Act to trigger Article 50, and it intends to propose a bill to this end very soon. Before becoming an Act of Parliament, a bill needs majority support from both Houses of Parliament. While, in light of the referendum result, there is no prospect that a majority of MPs will reject triggering Article 50, the bill is potentially subject to amendments – although the government may try to argue that amendments to its short, highly focussed bill are inadmissible.

But certainly the opposition parties will try. The Labour party has announced plans to table a number of amendments; the Scottish National Party says it will table 50 amendments; and the Liberal Democrats will propose holding a referendum on the final agreement reached by the UK and EU. In the House of Commons, the combined opposition would need around ten Conservatives to join them to pass any amendment. The House of Lords has to pass the bill too.

For a good overview of possible amendments, see this post by Professor Jeff King. In my view, one particular key amendment is essential: ensuring that an Act of Parliament must be passed to approve the UK/EU Brexit deal. That will give Parliament, in 2019, the full power to decide what to do then, from the range of possibilities available.

Anticipating one popular amendment, the government conceded already today that it will publish a White Paper on Brexit. However, rather cynically it seems that the White Paper will only be published after much of the parliamentary scrutiny has taken place. And it has been rightly suggested that an impact assessment would be much more useful.

While the Miller judgment means that arguments over Brexit primarily shift from the courts to parliament, it is not quite the end of legal proceedings. As noted already, the Irish case about the possible revocability of Article 50 will soon be launched, and the Miller ruling is expressly neutral on this point.

Furthermore, the ruling arguably strengthens the contention in a planned case (Wilding and others) that Parliament must also vote on whether the UK should leave the European Economic Area (EEA), a separate treaty that extends the EU single market to some non-EU countries.  I’ve previously blogged on that planned case here, and I can update the status of the case, thanks to Chelvan of No5 chambers, who is acting for one of the claimants (led by Ramby de Mello, for the second Claimants). The permission hearing in the case is due 3 February, and these claimants are arguing that (1) as with the European Communities Act, the royal prerogative does not give the executive power to issue an notice under Article 127 of the EEA; and (2) following the Miller judgment, the exercise of the prerogative without authority of an Act of Parliament will lead to a destruction of fundamental rights and freedoms conferred to UK and EEA nationals living and residing in the UK. As Miller confirmed, the referendum result is advisory; and in any event, it was an expression of political will with respect to leaving the EU and not the EEA.

What about the broader impact of the judgment? It is striking that in every respect, the judgment places the Westminster Parliament at the centre of the Brexit debate. By rejecting use of the royal prerogative to trigger Article 50, the ruling gives Parliament the power to set conditions upon the executive’s conduct of Brexit talks, and ensures that a broader public debate takes place. By affirming that the referendum result was not legally binding, it guarantees that legal authority remains with elected Members of Parliament – buttressed with unelected Lords – rather than the general public. And by asserting that devolved assemblies do not have a veto over Brexit, it entrenches Westminster’s decisive role in the national political debate. Miller raised deep questions about a number of developing tensions in the fabric of British constitutional law: between direct and representative democracy; between Parliament and executive; and between devolved powers and UK-wide government. To every question, the answer was, in effect: the Westminster Parliament.

Of course, there are practical limits to Westminster’s legal authority; and the judgment expressly recognises them. The outcome of the referendum vote is an unavoidable political reality. And so is the convention of seeking seeking the views of devolved assemblies – even though the government has already rejected their views, and intends to proceed against the opposition of the majority of voters in Scotland and Northern Ireland, and (as regards ‘hard Brexit’ at least) against the opposition of the government of Wales and the Plaid Cymru party (see their recent position paper). Furthermore, the executive has many ways to influence the conduct of Parliament’s business.

But for all these caveats, the judgment has certainly returned a degree of power over Brexit to the mother of Parliaments. The outcome of the debate over the Article 50 bill, in conjunction with the battle to come over the ‘Great Repeal Bill’, will determine how important Parliament remains as Brexit unfolds.

Despite many constitutional lawyers’ criticism of the technicalities of the judgment, in my view it at least fully expresses the traditional spirit of the UK constitution – and Parliament’s historic role in British political life. I’m an infrequent visitor to the Houses of Parliament, but I’ve experienced Ian Paisley push rudely in front of me in a queue, Dennis Skinner swear randomly at me in a lift, and Liam Fox glare angrily at me in a corridor. (Reader, I glared back at him). It’s the birthplace of boundless political dreams – yet also the graveyard of countless political careers.

Westminster's position may not last. Many have legitimate concerns about Parliament: the Hogarth cartoons displayed on its walls remind us that concerns about its scandals stretch back through the centuries.  There are valid arguments for further decentralisation of power to the regions, cities and devolved assemblies; for direct democracy; and for the efficiency of executive power. But for now, its pivotal role in the deciding the key aspects of Brexit can only be welcomed.

Barnard and Peers: chapter 27

Photo credit: the Telegraph

In-Between the Lines of the High Court Brexit Judgment: EU Transnational Rights and their Safeguards

Francesca Strumia, Lecturer in Law, University of Sheffield

This post casts another look at the recent High Court judgment on the government’s power to start the process of UK withdrawal from the EU. It reflects further on the EU law implications of the judgment, beyond the political furore that it has raised and possibly beyond the immediate contingencies of Brexit. The argument is that the judgment, albeit focusing on a question of UK constitutional law, also engages with the problem of safeguards for transnational rights – e.g. rights of British nationals in other Member States- in the process of a Member State’s withdrawal from the EU. Questions that the judgment prompts in this respect bear on EU law from three distinct perspectives that warrant closer analysis.

The immediate question that the judgment solves is whether the executive can rely on its prerogative powers covering international relations to give notice of withdrawal from the European Union under article 50 TEU. This is a question of UK constitutional law, as is the answer offered by the High Court: the executive can do no such thing. This is – the constitutional law argument goes – in good part because the exercise of prerogative powers cannot encompass alteration of domestic laws. Whilst withdrawal from the EU through the article 50 process will inevitably affect a large body of law that has become domestic through the 1972 European Communities Act (ECA).

In particular, the High Court, building on the parties’ submissions, distinguishes three classes of EU law rights that have gained domestic law status (par. 57-61). A first class includes rights that could be replicated in UK law following withdrawal from the EU, such as rights descending from EU employment law. A second class includes rights that British nationals enjoy in other EU Member States, such as the right to reside and work. A third class includes rights, such as the right to vote for the European Parliament or to trigger preliminary references at the CJEU, that are not capable of replication in domestic law following withdrawal from the EU. According to the High Court, it was Parliament that, through the ECA, brought into effect these three classes of rights (par. 62-66). And thus none of the three classes can be repealed through the executive prerogative powers (par. 92).

The reasoning flows as to classes one and three. However, it runs into some difficulty as to class two. Rights in this class are, in effect, transnational rights: they are grounded in EU law, and ultimately descend from UK membership in the EU, but they are implemented through the domestic law of other Member States, and they are enforced in the courts of other Member States. They are not UK domestic law. The High Court nonetheless files them together with the other two categories. Parliament knew and intended that as a result of the ratification of the Treaties – the argument goes – British citizens would have these rights enforceable in other Member States. This knowledge and intention on the part of Parliament is tantamount to Parliament ‘creating’ relevant rights (par. 66). As a result, the High Court decides that neither rights in classes one and three – that have been introduced in domestic law – nor rights in class two – that are ‘wider rights of British citizens’ descending from the Treaties, can be undone by royal prerogative without Parliament’s intervention (par.92).  Under cover of the same legal argument, the High Court achieves here two different results. In respect of rights in classes one and three, it applies the constitutional argument that the executive through the royal prerogative cannot alter domestic law. In respect of rights in class two, it further recognizes Parliament’s, rather than the executive’s, responsibility for altering a set of transnational rights grounded in EU law.

While the distinction is subtle, it has repercussions beyond the constitutional argument that is at the heart of the judgment. This angle of the High Court’s decision engages, albeit without explicit acknowledgment, the broader question of the necessary safeguards for transnational rights in the context of withdrawal of a Member State from the EU. The question links to EU law from three perspectives: it is grounded in the very nature of EU law; it may have a EU law answer; and the answer, whether grounded in EU law or in national choices, is bound to affect the prospects of EU law.

In the former sense, EU law has a hybrid nature: it is neither just Treaty law, nor fully domestic law, and it encompasses transnational rights. The High Court recognizes on the one hand this peculiarity of EU law as one of the distinctive legal features of the case it is hearing: principles of EU law weave a direct link between rights and obligations arising from governmental action at the international level and the content of domestic law (par. 34). On the other hand, the existence of transnational rights as part of EU law complexifies the legal issues surrounding withdrawal of a Member State. Beyond the international obligations and domestic rights that withdrawal affects, what of the transnational rights that depend on the Treaties but have vested and are enjoyed in the domestic law of Member States beyond the withdrawing one?  Are there any legal barriers to erasure of the latter rights, or are these at the disposal of the executive and/or of political decision? The question of safeguards is particularly important with regard to transnational as opposed to other classes of rights that a Member State’s decision to withdraw may affect. Holders of relevant rights may not have a voice in the political process that determines a Member State’s decision to withdraw. The High Court’s solution in this respect is to construe a set of such transnational rights – rights of British citizens enjoyed in other Member States - as domestic rights. As a result it subjects the process and conditions of their repeal to some checks and balances rather than leaving them to be washed away by government action at the international level.

The finding that transnational rights are domestic law is a dictum, and the High Court’s offered solution is but an accident of its decision on the main constitutional question. It may succumb, together with that decision, in the context of Supreme Court review. Yet, the High Court’s treatment of the issue points to a further EU law question that the Supreme Court may have to consider: whether EU law itself requires any peculiar safeguards for transnational rights as part of a Member State’s decision to withdraw. The Treaties provide scant guidance. Article 50 allows any Member State to decide to withdraw ‘in accordance with its constitutional requirements’. On its face, the text does not leave much room for EU law safeguards of any peculiar categories of rights in the process of making such decision. Yet there may be a question as to whether the duty of sincere cooperation under article 4(3) TEU, which of course binds an exiting Member State up until the point of effective withdrawal, constrains that process of decision making envisaged in article 50. Article 4(3) requires, among others, that a Member State facilitate the achievement of the Union’s tasks and refrain from jeopardizing the attainment of the Union’s objectives. Could this requirement be read to mandate peculiar safeguards, in the process of deciding and triggering withdrawal, for the position of minorities and of disenfranchised stakeholders whose rights and interests the EU purports to protect? Probably a stretch, but possibly another question that the CJEU may need to hear.

Finally, whether mandated by EU law or driven by autonomous constitutional arguments, the types of safeguards granted to transnational rights in the context of the process of deciding and setting in motion withdrawal affect the very prospects of EU law. This is a body of law that several theorists, from Philip Jessup to Kaarlo Tuori, have identified as a first concrete example of transnational law. Secession from a transnational law system, and its impact on laws that cut across borders, represent an important testing ground for the credibility and reliability of that system of law.  The point is not denying the voice of any democratic majority, or stopping Brexit. Or siding with Varoufakis’ argument that the EU is like Hotel California – one can check out, but can never leave -. The point is that the process of withdrawal, albeit set in motion by the decision of a democratic majority, has repercussions well beyond the jurisdiction and reach of that majority. First, it impinges on the status and rights of constituencies, who in the relevant democratic process were anything but disenfranchised. Second, it strips participating but opposed minorities of their transnational rights without appeal. The way these constituencies and minorities, as well as their interests will be taken into account in the decision, and process, of withdrawal will tell a telling tale as to the democratic credentials, and legitimacy of EU transnational law. In this respect, the choices of a withdrawing Member State with a strong tradition as a constitutional democracy subject to the rule of law (par. 18 of the High Court judgment) have a precedent to set, and bear responsibility, well beyond the contingencies of Brexit.

Barnard & Peers: chapter 27

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