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 And thus none of the three classes can be repealed through the executive prerogative powers (par. 92).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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