Brexit: the court, the controversy and the constitution

Polly Botsford

‘Ministers’ intentions are not law’ the Supreme Court stated in the UK’s most important constitutional case for a generation. In its ruling in R (on the application of Gina Miller & Dos Santos) v Secretary of State for Exiting the European Union (EU), the Court found against the UK Government. It concluded that the legislature – parliament – must pre-approve the intentions of the executive – the government – to start the process of the UK’s withdrawal from the EU.

The nub of the ruling is that, constitutionally speaking, the UK’s parliament must be consulted when the domestic rights of UK citizens may be affected.

On one level, the judgment appears technical. The UK Prime Minister, Theresa May, has already set a deadline for the UK to give notice of withdrawal as 31 March 2017, and MPs have voted to accept this. In addition, since the Supreme Court judgement, the Government has done what the Court requires and published the necessary piece of legislation regarding notification – even if it is only 50 words long. MPs subsequently voted on this in early February.

IBA podcast featuring Jack Straw, Tony Travers and Arlene Foster on the historic vote, the ensuing legal challenge, and key issues such as immigration and security.

Nevertheless, the case has garnered intense scrutiny since the application in July 2016. Those supporting the case have seen the judgment as a victory for ‘the rule of law over the rule of ministers’. Vehement opponents have characterised it as an attempt by judges to thwart the democratic will of the people, as expressed in the referendum, by giving MPs the opportunity to vote against notification (and ultimately against Brexit).

There were protests outside the divisional court where the judicial review was first heard and subsequently outside the UK Supreme Court in Parliament Square where the appeal took place in December. Some of the attention was on Gina Miller, the main applicant in the judicial review, who received death threats. The day after the judgment, police reported they’d arrested a man on allegations of ‘racially aggravated malicious communications’ towards Miller.

There appears to be a misconception in the public of Miller’s role in the judicial review proceedings. Jessica Simor QC is a public and EU law specialist at Matrix Chambers. ‘Anyone who has standing, a legitimate interest in the issue in question, can bring a judicial review case,’ she says ‘This was a standard judicial review process – there was nothing illegitimate in her bringing it.’

The eleven justices were also in the firing line. There was unprecedented criticism from one newspaper, labelling them ‘Enemies of the People’. It’s no accident that the Supreme Court judgment makes specific reference to the independence of judges within the UK’s constitutional framework: ‘judges impartially identify and apply the law in every case brought before the courts’.

More importantly, the judgment will outlast media criticism and is likely to be studied well beyond the triggering and negotiation of Brexit. The judgment contains a tour through the UK’s unwritten constitution, the evolution of parliamentary sovereignty, as well as constitutional arguments put forward during the four-day hearing.

‘‘The UK constitution is there to ensure that politicians comply with the law. ‘Majority’ or ‘popular’ support does not provide a legal basis for a Minister to act

Jessica Simor QC,
Matrix Chambers

The case focuses considerable analysis on the original enabling legislation, the European Communities Act 1972, which signed up the UK to the European Economic Community in the first place. It draws attention to how understated it was despite the fact that, ‘In constitutional terms, the effect of the 1972 Act was unprecedented.’

The Act enabled all EU law to not only become a source of UK law but also to allow EU law ‘to take precedence over all domestic sources of UK law.’ It wasn’t until the 1990s, the majority judgment explains, that UK domestic law found itself trumped by EU laws: the judgment references the famous case of Factortame (R (Factortame Ltd) v Secretary of State for Transport) where Spanish fishermen successfully sued the UK Government over British merchant shipping law.

The justices weren’t unanimous: the majority judgment was supported and co-written by eight - with three dissenters. Broadly, they took the view that the ECA 1972 is a ‘conduit’ from the EU treaties made with the UK through to domestic laws – and any EU treaty, as an international treaty, remains the preserve of ministers not parliament.

One particular line of dissent has caught the media’s eye: it is hidden at paragraph 240 of the judgment. Lord Reed suggests the Miller application and similar legal challenges to Brexit are putting judges and the courts in a very difficult position. ‘It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.’

Simor disagrees. ‘Article 50 notification is a legal issue,’ she says. ‘It may also be a political one but that doesn’t take away from the fact that there was a legal issue here: the UK constitution is there to ensure that politicians comply with the law. ‘Majority’ or ‘popular’ support does not provide a legal basis for a Minister to act. If a Minister does not have a legal basis for action, then if the rule of law is to be upheld, it must be possible to challenge the legality of that action in the courts.’

The Article 50 judgment is one step on the path to Brexit, a path that needs attention. Chris Owen is Vice-Chair of the IBA’s European Regional Forum. ‘If we do have a hard Brexit, then one of the greatest challenges is going to be on the regulatory side,’ he says, ‘How are the UK and the EU going to work together to ensure equivalence between different regulatory regimes? How do we keep the connection and flow of information, such as in financial services where the UK is highly respected in terms of its regulation? We need to ensure what we might call “institutional connectivity” between the UK and the EU is established, and it needs to be in place at the point of withdrawal.’

The Miller case is not the end of the judicial story. Another case which mirrors the Article 50 one, is also expected in an application brought by think tank, British Influence, in December. The claim seeks a declaration that the UK can only leave the European Single Market by following the formal withdrawal procedure under the soon-to-be-well-known Article 127, and with the UK Parliament’s prior authorisation. As Global Insight went to press, its first hearing was due to be held in February.

Another seeks an answer to the question: ‘What happens if we change our minds?’ It seeks a ruling from the European Court of Justice on whether Brexit can be revoked once the withdrawal process has started without the approval of the 27 EU member states. The case, the brainchild of Jolyon Maugham QC, is to be taken against the Irish Government.