AmericaThe Brexit process has been a major event in British constitutional history, and in the history of constitutionalism in general.  It originated in the positions taken by two Prime Ministers.  David Cameron said that he was bound to hold a referendum because that commitment had been contained in the Conservative Party manifesto for the 2015 General Election.  Theresa May said that she was bound to give effect to the outcome of the 2016 referendum because it had expressed the will of the people.

The development of parliamentary democracy, a form of indirect democracy, has been at the heart of British history for seven centuries.  Direct democracy is decisive political power exercised by the people other than through established constitutional processes.  In practice, the commitments in the election manifesto of a political party have not been regarded as binding, politically or legally, on an incoming government.  Our established constitutional processes have not included referendums that are not legally binding but are treated as binding by a government.

The problem of direct democracy has a history as old as rational discussion about the nature of government.  It is a history that is still being made.

Aristotle saw direct democracy as having an inherent tendency to become another form of tyranny: a tyranny of the majority, as discussed by Edmund Burke and Thomas Jefferson and Alexis de Tocqueville and J.S. Mill.  Cicero vigorously defended the unwritten constitution of the Roman Republic embodied in the subtle duality of the Senate and the People.  Alcuin, the eighth-century proto-Yorkshireman who acted as an adviser to the emperor Charlemagne, told him: ‘Don’t listen to those who keep saying that the voice of the people is the voice of God.  The noise of the crowd is always close to madness.’

Embryonic English parliamentarianism in the thirteenth century was an attempt to regulate the relationship between the monarch and the people who paid for the king’s government. It was a system of reciprocity.  Thomas Smith, one of Queen Elizabeth I’s Secretaries of State, said in 1583: ‘And the consent of Parliament is taken to be every man’s consent.’  We elect the members of the House of Commons.  The laws that Parliament makes bind us.

We may hear an echo of this in Edmund Burke’s rather unwise speech to the electors of his Bristol constituency as their new MP (1774), telling them that he was their representative not their delegate.  He would not take instructions from them.  He would use his own judgment.  He was not re-elected. The British parliament is not merely an ‘assembly’, a term used in the constitutions of some other countries.  It is a legally constituted corporate organ of the constitution, alongside the government and the courts, all three of which are manifestations of a three-in-one monarchy set in an immensely complicated relationship of interacting powers.

The prolonged seventeenth-century constitutional confrontation of king, parliament and the courts established the Rule of Law as the ultimate principle of British constitutionalism and, in due course, of liberal democracy in general. The Instrument of Government (1653) of Cromwell’s Commonwealth placed ‘supreme legislative authority in the Lord Protector (Cromwell) and the people assembled in Parliament’, subject to explicit and legally binding checks and balances.

Our only, and very temporary, written constitution would leave the British constitution essentially unchanged after the restoration of the monarchy in 1660.  But it would be a model for written constitutions in many other countries.

In the eighteenth century, all across Europe, a new social phenomenon became a new political phenomenon, and eventually a new constitutional phenomenon.  Public opinion.  The business of government would now be the subject of everyday politics.  In salons and coffee-houses and cafes and clubs and newspapers, the people would have their own say.  Liberal democracy is a system for reconciling the conflicting ideas and interests of the citizens through the struggle of politics, and reconciling private interest with public interest through government and law.

Direct democracy, if it imposes the will of a majority on government and law, ignoring the will of the minority, is tyranny by another name.  The tyranny is also a tragedy if, as seems to be beyond doubt in the case of Brexit, a foreign government and foreign money assisted the referendum campaign that was so narrowly successful.

The US Constitution of 1787 presented ‘We, the People of the United States’ as the constituting power of the Constitution.  But that was the limit of their function. The Founding Fathers, mostly landowners, merchants and lawyers, constructed a constitutional system which is as far away from direct democracy as possible, having had some experience of such a thing in the state of Massachusetts.  The President was to be part of one of the three organs of the constitution, with none of the mystical status of a British monarch.

For a while it seemed possible that the French Revolution might cause fundamental changes in the British constitution.  The revolutionary constitutional documents placed ultimate power (sovereignty) in the nation and the people.  All constitutionalism is the permutation of artificial entities, necessary fictions, forged in the human mind but liable to have massive real-world effects.  Those revolutionary ideas would have a busy and troubled life in continental Europe in the nineteenth century and beyond.

Not in Britain, however. The reform of Parliament in 1832, extending the electorate of the House of Commons to parts of the middle classes, caused anguish in the minds of some otherwise enlightened commentators, not least J.S. Mill.  But it saved Britain from the succession of rebellions and revolutions that plagued Continental Europe throughout the century.  The present French constitution is the fifteenth constitution since 1791.  The Duke of Wellington, as Prime Minister, said that we were conducting ‘revolution by due course of law’.  Friedrich Engels said that the British parliament was ‘the most revolutionary body in Europe’.

Parliament’s heady days in the nineteenth century gave way to what two distinguished lawyers called ‘the new despotism’ (Lord Hewart, 1929) and ‘elective dictatorship’ (Lord Hailsham, 1976) in the twentieth century.  The House of Commons had become the poodle of the government. Governing the massive complexity and energy of the modern state, with non-stop social reconstruction of every branch of society, had made necessary a vastly increased constitutional role for the executive.

In the meantime, the brand ‘democracy’ has been contaminated by its use as an instrument of totalitarianism (‘people’s democracies’), by its manipulation by tyrants through plebiscites and rigged elections, by the corruption of elected officials and government officials by pressure-groups and special interests and organised crime. The survival and well-being of liberal democracy may be a condition of the survival and well-being of humanity in the twenty-first century. As the inventor of liberal democracy, Britain has a special responsibility to protect it from insidious erosion within Britain itself.

It is interesting that the Brexit process, which might be seen as a deliberate violation of the centuries-long role of Parliament as the place where the voice of the people makes itself heard and takes legal effect, seems to have given a new lease of life to the House of Commons as the ultimate arbiter of a major and much disputed potential change in British constitutionalism, a change that could put at risk the constitutional unity of the United Kingdom, and would set dramatically different conditions for Britain’s participation in an international constitutional order which is itself living perilously close to the edge of chaos.

‘No monarch, however, absolute, can concentrate in his own hands all the influences of society, and vanquish all resistance, as a majority, invested with the power of making and executing the laws, can do.’  Alexis de Tocqueville, Democracy in America (1835).

Philip Allott is Professor Emeritus of International Public Law at Cambridge University. His most recent book is Eutopia. New Philosophy and New Law for a Troubled World, first published in 2016 to mark the 500th anniversary of the publication of Thomas More’s Utopia.

(Suggested citation: P. Allott, ‘The Problem of Direct Democracy: Brexit and the Tyranny of the Majority’, U.K. Const. L. Blog (10th Jan. 2019) (available at https://ukconstitutionallaw.org/))

AmericaThe Brexit process has been a major event in British constitutional history, and in the history of constitutionalism in general.  It originated in the positions taken by two Prime Ministers.  David Cameron said that he was bound to hold a referendum because that commitment had been contained in the Conservative Party manifesto for the 2015 General Election.  Theresa May said that she was bound to give effect to the outcome of the 2016 referendum because it had expressed the will of the people.

The development of parliamentary democracy, a form of indirect democracy, has been at the heart of British history for seven centuries.  Direct democracy is decisive political power exercised by the people other than through established constitutional processes.  In practice, the commitments in the election manifesto of a political party have not been regarded as binding, politically or legally, on an incoming government.  Our established constitutional processes have not included referendums that are not legally binding but are treated as binding by a government.

The problem of direct democracy has a history as old as rational discussion about the nature of government.  It is a history that is still being made.

Aristotle saw direct democracy as having an inherent tendency to become another form of tyranny: a tyranny of the majority, as discussed by Edmund Burke and Thomas Jefferson and Alexis de Tocqueville and J.S. Mill.  Cicero vigorously defended the unwritten constitution of the Roman Republic embodied in the subtle duality of the Senate and the People.  Alcuin, the eighth-century proto-Yorkshireman who acted as an adviser to the emperor Charlemagne, told him: ‘Don’t listen to those who keep saying that the voice of the people is the voice of God.  The noise of the crowd is always close to madness.’

Embryonic English parliamentarianism in the thirteenth century was an attempt to regulate the relationship between the monarch and the people who paid for the king’s government. It was a system of reciprocity.  Thomas Smith, one of Queen Elizabeth I’s Secretaries of State, said in 1583: ‘And the consent of Parliament is taken to be every man’s consent.’  We elect the members of the House of Commons.  The laws that Parliament makes bind us.

We may hear an echo of this in Edmund Burke’s rather unwise speech to the electors of his Bristol constituency as their new MP (1774), telling them that he was their representative not their delegate.  He would not take instructions from them.  He would use his own judgment.  He was not re-elected. The British parliament is not merely an ‘assembly’, a term used in the constitutions of some other countries.  It is a legally constituted corporate organ of the constitution, alongside the government and the courts, all three of which are manifestations of a three-in-one monarchy set in an immensely complicated relationship of interacting powers.

The prolonged seventeenth-century constitutional confrontation of king, parliament and the courts established the Rule of Law as the ultimate principle of British constitutionalism and, in due course, of liberal democracy in general. The Instrument of Government (1653) of Cromwell’s Commonwealth placed ‘supreme legislative authority in the Lord Protector (Cromwell) and the people assembled in Parliament’, subject to explicit and legally binding checks and balances.

Our only, and very temporary, written constitution would leave the British constitution essentially unchanged after the restoration of the monarchy in 1660.  But it would be a model for written constitutions in many other countries.

In the eighteenth century, all across Europe, a new social phenomenon became a new political phenomenon, and eventually a new constitutional phenomenon.  Public opinion.  The business of government would now be the subject of everyday politics.  In salons and coffee-houses and cafes and clubs and newspapers, the people would have their own say.  Liberal democracy is a system for reconciling the conflicting ideas and interests of the citizens through the struggle of politics, and reconciling private interest with public interest through government and law.

Direct democracy, if it imposes the will of a majority on government and law, ignoring the will of the minority, is tyranny by another name.  The tyranny is also a tragedy if, as seems to be beyond doubt in the case of Brexit, a foreign government and foreign money assisted the referendum campaign that was so narrowly successful.

The US Constitution of 1787 presented ‘We, the People of the United States’ as the constituting power of the Constitution.  But that was the limit of their function. The Founding Fathers, mostly landowners, merchants and lawyers, constructed a constitutional system which is as far away from direct democracy as possible, having had some experience of such a thing in the state of Massachusetts.  The President was to be part of one of the three organs of the constitution, with none of the mystical status of a British monarch.

For a while it seemed possible that the French Revolution might cause fundamental changes in the British constitution.  The revolutionary constitutional documents placed ultimate power (sovereignty) in the nation and the people.  All constitutionalism is the permutation of artificial entities, necessary fictions, forged in the human mind but liable to have massive real-world effects.  Those revolutionary ideas would have a busy and troubled life in continental Europe in the nineteenth century and beyond.

Not in Britain, however. The reform of Parliament in 1832, extending the electorate of the House of Commons to parts of the middle classes, caused anguish in the minds of some otherwise enlightened commentators, not least J.S. Mill.  But it saved Britain from the succession of rebellions and revolutions that plagued Continental Europe throughout the century.  The present French constitution is the fifteenth constitution since 1791.  The Duke of Wellington, as Prime Minister, said that we were conducting ‘revolution by due course of law’.  Friedrich Engels said that the British parliament was ‘the most revolutionary body in Europe’.

Parliament’s heady days in the nineteenth century gave way to what two distinguished lawyers called ‘the new despotism’ (Lord Hewart, 1929) and ‘elective dictatorship’ (Lord Hailsham, 1976) in the twentieth century.  The House of Commons had become the poodle of the government. Governing the massive complexity and energy of the modern state, with non-stop social reconstruction of every branch of society, had made necessary a vastly increased constitutional role for the executive.

In the meantime, the brand ‘democracy’ has been contaminated by its use as an instrument of totalitarianism (‘people’s democracies’), by its manipulation by tyrants through plebiscites and rigged elections, by the corruption of elected officials and government officials by pressure-groups and special interests and organised crime. The survival and well-being of liberal democracy may be a condition of the survival and well-being of humanity in the twenty-first century. As the inventor of liberal democracy, Britain has a special responsibility to protect it from insidious erosion within Britain itself.

It is interesting that the Brexit process, which might be seen as a deliberate violation of the centuries-long role of Parliament as the place where the voice of the people makes itself heard and takes legal effect, seems to have given a new lease of life to the House of Commons as the ultimate arbiter of a major and much disputed potential change in British constitutionalism, a change that could put at risk the constitutional unity of the United Kingdom, and would set dramatically different conditions for Britain’s participation in an international constitutional order which is itself living perilously close to the edge of chaos.

‘No monarch, however, absolute, can concentrate in his own hands all the influences of society, and vanquish all resistance, as a majority, invested with the power of making and executing the laws, can do.’  Alexis de Tocqueville, Democracy in America (1835).

Philip Allott is Professor Emeritus of International Public Law at Cambridge University. His most recent book is Eutopia. New Philosophy and New Law for a Troubled World, first published in 2016 to mark the 500th anniversary of the publication of Thomas More’s Utopia.

(Suggested citation: P. Allott, ‘The Problem of Direct Democracy: Brexit and the Tyranny of the Majority’, U.K. Const. L. Blog (10th Jan. 2019) (available at https://ukconstitutionallaw.org/))

authorIntroduction

The possibility of extending the Article 50 process is being discussed in media outlets and social media. There are a number of potential scenarios where a short extension might be sought:

  1. to implement the Withdrawal Agreement in law
  2. to manage the process of a no deal Brexit
  3. to hold a general election
  4. to hold a second referendum

This post seeks to explore some of the legal questions that arise if an extension were attempted. It should be noted that the effect of an extension would be to continue membership of the EU, for the time being. It will be assumed, solely for the purposes of this post, that political agreement of the EU is obtained to extend the Article 50 period as required as a matter of EU law.

In reality, such consent cannot be assumed, as Eleanor Sharpston has pointed out. She also suggests that it might be difficult for any extension to last beyond 2 July 2019 – the inaugural session of the European Parliament following elections in May.

The question of whether the UK ought to seek an extension is outside the scope of this post and nothing in this post should be taken as endorsing any particular course of action.

Application of the frustration principle to an attempt to revoke Article 50

The frustration principle was defined by Lord Browne-Wilkinson in Fire Brigades Union:

it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament as expressed in a statute

Over a year ago, I argued on this blog that the European Union (Notification of Withdrawal) Act 2017 (‘EUNoWA’) meant that revocation of the notification given to the EU under Article 50 would require the conferral of a statutory power, as a matter of domestic law, and that could only be achieved via fresh legislation. This is because any attempt to use prerogative power would be in breach of the frustration principle in relation to EUNoWA.

More recently, Gavin Phillipson and Alison Young have argued that the European Union (Withdrawal) Act 2018 (‘EUWA’) provides a new and independent reason why the frustration principle would be breached if the government attempted to use prerogative to revoke notification of Article 50. Robert Brett Taylor and Adelyn Wilson have argued on this blog that EUNoWA contains an implied statutory power to revoke notification. See also this by Aris Georgopolous on this blog.

The status of the treaty prerogative

The majority judgment in Miller applied the frustration principle directly and considered the relevance of the treaty prerogative in EU law specifically. It must therefore frame the analysis of any potential extension of the Article 50 process using prerogative. Unfortunately, some careful parsing of the relevant paragraphs is needed.

Miller confirmed that the frustration principle is settled law ([51]). As I argued in Public Law (Brexit special edition, 2017), Miller was, in my view, a simple application of the frustration principle and, as the majority stated, their conclusion followed ‘from the ordinary application of basic concepts of constitutional law’ – ([82]). Miller is indistinguishable from the decision in Laker Airways which has stood unchallenged for over 40 years.

Unfortunately, however, some dicta in Miller may raise doubts about the status and even the existence of the treaty prerogative in the context of the EU. Lord Templeman in Rayner said that the treaty prerogative meant that the government could ‘negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty’.

One example of evidence of confusion in the judgment around the treaty prerogative is in paragraph 86:

[86]…Accordingly, the Royal prerogative to make and unmake treaties, which operates wholly on the international plane, cannot be exercised in relation to the EU Treaties, at least in the absence of domestic sanction in appropriate statutory form. It follows that rather than the Secretary of State being able to rely on the absence in the 1972 Act of any exclusion of the prerogative power to withdraw from the EU Treaties, the proper analysis is that, unless that Act [the ECA] positively created such a power in relation to those Treaties, it does not exist. (Emphasis added)

This passage appears to suggest that in relation to the ‘EU Treaties’, the prerogative does not exist. At first sight, this is quite a troubling statement. It can be immediately be countered by pointing out that the government used this very prerogative for 46 years to agree new Treaties, and new legislation, at EU level.

Furthermore, the first half of the extract above makes clear that the prerogative cannot be exercised in relation to EU Treaties. This is correct but a claim about how a prerogative is exercised presupposes the existence of that very prerogative in the first place. It just cannot be used in a way that frustrates the intention of the ECA and other domestic Acts. This means that paragraph 86 contradicts itself within just a few lines.

The majority appear almost to admit that the prerogative does in fact exist later in the judgment, at paragraph 95:

[95] We readily accept, without formally deciding, that ministerial activity in the EU law-making process is effected under Royal Prerogative. However, it does not follow from this that ministers should be entitled to exercise a prerogative power to leave the European Union. When taking part in EU decision-making, UK ministers are carrying out the very functions which were envisaged by Parliament when enacting the 1972 Act. (Emphasis added)

These two extracts are not reconcilable, particularly as the claims in paragraph 95 presuppose the existence of the power which is claimed not to exist in paragraph 86. Paragraph 95, like the first half of paragraph 86 suggests that the prerogative exists but simply cannot be used in a way that frustrates the intention of the ECA (or other Acts such as the now repealed European Parliamentary Elections Act 2002 (‘EPEA’)), which is not controversial – or to perhaps be more accurate, it really should not have been controversial.

The better view, it is suggested, is that there is a general ‘treaty prerogative’ power that persisted throughout the period and simply could not be used to trigger notification because that would be to frustrate the ECA and other Acts. That power includes the ability to agree new law at EU level and, but for the ECA, would have permitted notification to have been made using that power.

This view would situate the treaty prerogative as just one aspect of an even larger prerogative of ‘foreign affairs’ which would include defence of the realm and declaring war.

The alternative view that there are many singular prerogative powers that pop in and out of existence in some eccentric way is unhelpful and wrong.

Section 20 EUWA

It might be thought that the power conferred by EUWA on the government to change ‘exit day’ would be sufficient in domestic law. This is mistaken, not least because changing exit day only has effect with respect to EUWA. Exit day is an important part of EUWA, not least because s 1 EUWA repeals the ECA on ‘exit day’.

S 20(1) “exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2) to (5));

S 20(3) Subsection (4) applies if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1).

S 20(4) A Minister of the Crown may by regulations—

amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and

amend subsection (2) in consequence of any such amendment

All that s 20(4) EUWA does is permit the change of ‘exit day’ as a matter of domestic law in EUWA. That does not mean that there exists a valid source of lawful authority to extend Article 50 at the international level – indeed neither s 20(3) nor s 20(4) purports to grant a statutory power to extend at the international level. Furthermore, s 20(3) presupposes that there exists an alternative legal basis through which the government can change ‘exit day’ so it is no longer 29 March 2019 as set out in EUWA (the author would like to Jack Williams for this point). The obvious candidate for such a legal power is the prerogative.

Along the same lines, it might be thought that since an extension under Article 50 necessarily takes place at the international level, there is no need for any further legal authority at domestic level beyond the royal prerogative to extend the process at EU level. This is theoretically correct, but as Miller confirmed, care must be taken to ensure that any such purported lawful exercise of prerogative does not frustrate the intention of any Act. If it does, fresh statutory authorisation must be sought from, and conferred by, parliament.

Implied statutory power

Some may think that s 20(4) EUWA might provide an implied statutory authority to extend the Article 50 process at the international level. After all, if the government has had the power conferred on it by parliament to extend the process in domestic law, it might seem somewhat odd that there is no statutory power conferred on the government to seek to change the date at the international level.

Such an argument faces some serious hurdles. The first, obvious, difficulty is that the courts are not in the habit of implying new statutory provisions into Acts of Parliament. This point is also somewhat problematic for those who might think that EUNoWA could contain an implied power to extend the Article 50 process. The power to notify under Article 50 was a highly specific and narrow conferral by parliament in EUNoWA. Crucially, the language of EUNoWA is not remotely unclear or vaguely worded. Thus, the claim that EUNoWA contains an implied statutory power to extend the process at the international level seems unpersuasive.

Secondly, and connected to the first point, s 20(4) is an example of a ‘Henry VIII’ clause. Such clauses allow for the modification of primary legislation. It is trite law that such clauses are construed narrowly, not broadly (see the Public Law Project case at [27]). Implying a statutory power into s 20(4) EUWA therefore faces an additional hurdle.

Thirdly, any implied statutory power would necessarily overlap with the prerogative and put it into abeyance. The courts have consistently held in case law since De Keyser that statutory provisions that overlap with prerogative powers and put them into abeyance must be clearly expressed. There is no example in the case law of an implied statutory provision that has put the prerogative into abeyance.

Finally, a similar argument about reading a power into statute was rejected by the majority in Miller in the context of s 2(1) ECA which states, in part:

2(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly (Emphasis added)

The majority held that the idea of reading into s 2(1) ECA a statutory ‘power’ to notify under Article 50 at the international level was impossible because such a power was ‘not one which would be given “legal effect or used in”, or which would be “enjoyed by the United Kingdom”’ [79]. By contrast, Lord Reed considered the point ‘arguable’, but did not pursue it ([201]).

It seems unlikely that the court would impliedly read an analogous power (to extend) at the international level into s 20(4) EUWA which contains no wording about ‘powers’ at all, when it refused to read any equivalent statutory power (to notify) into a statutory provision, s 2(1) ECA, which specifically includes the phrase ‘powers’.

Incidentally, if the court in Miller had read a statutory power into s 2(1) ECA then some difficult questions about the applicability of the Miller ratio to the use of the prerogative to agree the Withdrawal Agreement could have been avoided.

Exercising the Royal Prerogative

It might be thought to be somewhat strange that prerogative could be used to extend the Article 50 process but could not be used to notify the start of the process, or indeed revoke such a notification. Any sense of strangeness may fade when the nature and role of the prerogative in domestic law is considered. The treaty prerogative is a general power possessed by the crown in domestic law and exercised on the international plane. Case law has established that the general power is constrained if it conflicts with any Act.

This means that the power to notify under Article 50, and revoke that notification, are certainly included within the treaty prerogative – just as the power to agree new law at EU level is included – but those powers could not be exercised due to the ECA, EUNoWA and EUWA.

The remaining question is obviously whether the treaty prerogative power to extend the Article 50 process (which is certainly encompassed within the general treaty prerogative) can be exercised. The answer to that question involves ascertaining whether an extension would frustrate the intention of parliament in any Act.

The first Acts to consider are EUNoWA and EUWA. Unlike revocation, it is not at all obvious that a short extension would frustrate those Acts. On the contrary, to the extent that such an extension permits a smoother achievement of what parliament clearly intended in passing those Acts (which is to leave the EU), the exercise of the prerogative in this case to secure a short extension would not appear to frustrate those Acts in any way.

Furthermore, the very fact that parliament conferred a power on ministers to change the exit day as a matter of domestic law suggests that exercising the prerogative in a way consistent with that power is very unlikely to be considered to frustrate the intention of parliament as expressed in EUWA. Indeed, this is what appears to be envisaged in the final sentence of the extract from paragraph 95 of Miller above.

On the other hand, it is difficult to see how using the prerogative to continue membership of the EU on a temporary standstill basis could frustrate the intention of parliament in the ECA. Nor would it seem to frustrate any of the other Acts mentioned in the Miller litigation, and in the original post on this blog that precipitated that litigation by Barber, King and Hickman.

There is a slightly tricky point about whether repeated extensions could eventually (or fairly quickly) mean that the intention of parliament was being effectively frustrated but that issue may be safely deferred to another day. Recent events have shown that there is no shortage of potential litigants willing to draw such matters to the attention of the courts, even where the arguments are woeful. In addition, a rolling extension might fall foul of the CJEU following the Wightman decision.

The exercise of the treaty prerogative to extend the Article 50 process would thus appear to be consistent with all relevant Acts as a matter of domestic law. There is one codicil, however. Schedule 7 of EUWA requires that any change in exit day must be approved by affirmative resolution in the House of Commons. If there needs to be a positive vote in the Commons anyway, the government might prefer to change the date by piloting a short Bill through the House – and in the process, for the avoidance of any doubt, seeking statutory authorisation for the government to extend the Article 50 process at EU level, as well as perhaps conferring statutory authority to continue all future negotiations at EU level concerning the Withdrawal Agreement and the Framework for the Future Relationship.

Conclusion

This post has suggested that, unlike revocation of notification, the treaty prerogative can be used to extend the Article 50 process on the international plane as a matter of domestic law. It has suggested that some of the Miller dicta on the nature of the treaty prerogative must be approached with caution (although those of us with the luxury of time to reflect should perhaps recall that the judgment was drafted in a considerable hurry and under unprecedented political pressure). It has been further suggested that the idea of an implied statutory power faces seemingly insuperable hurdles. Overall, and unlike notification, or revocation of notification, it is suggested that the treaty prerogative is a sufficient legal basis for a brief extension of the Article 50 process on the international plane as a matter of domestic law.

The author would like to thank Gavin Phillipson, Carl Gardner, Jack Simson Caird, Paul Craig, Tom Poole, Jack Williams and Alison Young for their helpful comments on a previous draft. The usual disclaimer applies.

Robert Craig is an AHRC doctoral candidate and part time tutor in law at Durham Law School, Durham University and at LSE, Department of Law.

(Suggested citation: R. Craig, ‘Can the Government Use the Royal Prerogative to Extend Article 50?’, U.K. Const. L. Blog (9th Jan. 2018) (available at https://ukconstitutionallaw.org/))

Institute of LawThe recent CJEU decision of Wightman v Secretary of State for Exiting the European Union [2018] 3 WLR 1965 interpreted Article 50 of the Treaty on European Union as giving the United Kingdom a unilateral right to revoke its notice of withdrawal from the EU. Academic comment has naturally turned to whether the decision was correct, and whether the decision permits a tactical revocation so that the withdrawing Member State can reset the clock on negotiations.

This contribution considers whether the CJEU’s decision has lessons for the interpretation of Article 50 generally. Importantly, the CJEU identified the provision’s two objectives  at [56]:

“… Article 50 TEU pursues two objectives, namely, first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion.”

This contrasts greatly with the common argument that Article 50 is a “trap” or that it “tips the balance of negotiating power massively in favour of the remaining EU states”, and that it is designed to favour the EU to the detriment of a withdrawing Member State.  The two-year time limit is there to guarantee a sovereign withdrawal, it is not an invitation for the EU to apply time pressure, even if it creates that potential.

I will argue that the objectives of Article 50 identified by the CJEU vindicate a thesis that I set out in an article published by the German Law Journal, “Article 50 and Member State Sovereignty”, and is entirely in keeping with pre-Brexit referendum literature on Article 50, including several decisions from national constitutional courts. Properly interpreted, Article 50 creates formal equality between the EU and the withdrawing Member State. Contrary to the EU’s interpretation that has set the landscape for negotiations by determining that future relationship issues” can only be finalised and concluded once the United Kingdom has become a third country”, Article 50 actually allows for all the business of withdrawal to be discussed and agreed.

Pre-referendum literature

It should not be a surprise that the Court held that respect for Member State sovereignty was the first object of Article 50. This conclusion is found in decisions of Member State Constitutional Courts. The Spanish Constitutional Tribunal said that “sovereignty is always ultimately assured” by the right to leave the EU – Jochen Hebst summarised this part of the Spanish decision as holding that “the right to leave will have a promoting effect on the European integration process rather than being a contradictory and explosive element.” The German Constitutional Court’s Lisbon Case decision used Article 50 to reconcile deeper European integration with state sovereignty. The Czech Constitutional Court saw Article 50 as an “explicit articulation of… the continuing sovereignty of Member States”.

Prior to Article 50, there were two possibilities for leaving the EU. A Member State could leave by way of a Treaty amendment which could address all issues, but required the consent of all other Member States. Alternatively, a Member State could leave unilaterally. Debates as to the illegality of this under EU law wold be somewhat moot: the EU would be left with a fait accompli as it cannot enforce its legal order in a Member State that refuses to accept it. So, prior to Article 50, Member States had an orderly but non-sovereign possibility for leaving the Union (i.e. consensual Treaty amendment), and a sovereign but disorderly method (i.e. a unilateral declaration of independence.)

Viewed in this context, the CJEU in Wightman affirmed what should have been obvious: Article 50 existed to provide a sovereign and orderly means of departure.

This was accepted in the pre-referendum literature. The position of the Czech, German and Spanish Constitutional Courts was noted above. There is no space to repeat the academic literature review in my German Law Journal article, but a fair representation is Guillem Guilet’s conclusion that: “Change in the status quo regarding the legal, political, financial, commercial and social relations that take place within the European Union would call for a negotiated solution.” Vaughne Millar and Eva-Maria Poptcheva writing briefings for the UK and European Parliaments respectively both envisaged new arrangements being part of the Article 50 process. One of the most extensive writers on the subject, Adam Łazowski, noted shortly after the referendum that “[t]here are many reasons why a withdrawal agreement should cover both the terms and conditions of exit and future relations,” but added “[s]adly, this is not where the current debate is heading.”

Pre-referendum literature did raise doubts on whether Article 50 Agreements needed to be supplemented by full Treaty Amendments, or by separate Member State ratification of a “mixed agreement”. However, these are issues as to the procedure for how the EU enacts an agreement on certain future issues before the Member State departs, not whether such agreements could be reached prior to the Member State’s withdrawal.

Wightman and the EU’s approach

The EU’s interpretation of Article 50 in its Council Decision authorising the Commission to open negotiations and the corresponding European Parliament resolution is that the withdrawal agreement can only address “divorce issues”. The future relationship was a matter for international agreements that the EU could only reach with a Third Country – so agreeing any future arrangements must wait.

On that view, Article 50 must achieve either a “cliff-edge Brexit” or a “blind-Brexit”. The withdrawing State has two choices. (1) It can regain full sovereignty after two-years, but with no replacement arrangements with the EU. (2) It can agree to continue existing arrangements with the EU, but minus political representation in EU institutions (i.e. the stand-still transition), with no idea as to what follows. “Sovereign withdrawal” and “orderly withdrawal” became either/or options. Furthermore, achieving an orderly withdrawal required not just deferring regaining sovereignty beyond the two-years anticipated by Article 50, but to cede previously pooled sovereignty to the EU for the uncertain duration of a stand-still transition.

Only by viewing Article 50’s objectives as being to favour the interests of the Remaining Member States can such an outcome be viewed as normal.

Applying the CJEU’s interpretation

It is important to turn to what the CJEU’s approach to the objectives of Article 50 means for the withdrawal process as a whole. Wightman only answers how they affect the right of a Member State to unilaterally revoke the decision to withdraw.

The Czech Constitutional  Court summed up what a sovereign orderly withdrawal process means: “an expression of the common will of the Member States to address their future relationships by agreement, consensually, and comprehensively”.

The correct perspective to understand Article 50 does not seek to promote the EU’s interests as against the withdrawing Member State, but seeks to enshrine every Member State’s sovereign right to leave the EU. Article 50 supports the sovereignty even of those who plan never to un-pool their sovereignty from the EU, making their choice to stay a positive choice, as Herbst argues. The CJEU makes no suggestion that the “orderly fashion” objective exists for the benefit of the EU alone. An orderly process makes the sovereign right to withdraw effective. Furthermore, as the Latvian Constitutional Court observed, it protects all Member States from the disruption of an unnegotiated unilateral departure. To read down the scope of Article 50 risks guaranteeing such disruption for the EU, except insofar as it can rationalise its own interests as “divorce” issues. It is as Frederico Fabbrini argued: Article 50 was a mechanism to “provide solid protections of a member state’s rights, while being respectful of the equality of the member states”. Article 50 exists for the protection of both sides, not as a protection and deterrent against secession.

It follows that Article 50 does not require the EU to restrict the scope of withdrawal negotiations.

Conclusion

The objectives identified by the CJEU in Wightman can only be achieved if Article 50 creates a process that is orderly for both sides, and respects the right of the withdrawing Member State to leave or (post-Wightman) even agree to stay. Otherwise the provision would not advance the position of Member States from the pre-existing options of negotiated Treaty amendments or unilateral denunciation.

This should not be a surprising conclusion. The leading (possibly only) direct judicial authority on how to carry out a consensual secession is the Canadian Supreme Court decision in the Quebec Secession Reference Case. The Court held that there are two “legitimate majorities” in any democratic secession, neither trumps the other, and everything is on the table for a negotiation respectful of the interests of both sides.

It is true that the Canadian decision is highly aspirational, the Court recognised at [101]: “the distinction between the strong defence of legitimate interests and the taking of positions which, in fact, ignore the legitimate interests of others is one that also defies legal analysis.” A party that ignores the Court’s aspirational principles would pay a price in “legitimacy” alone, the Court speculating that there might be “international ramification”, see at [103].  But it is also unclear why Article 50 should be interpreted to legally forbid the EU from pursuing such an aspiration and instead require that the subject matter of negotiations be strictly limited. Such a restrictive  interpretation has been called into doubt by the CJEU’s identification of broad and generous objectives for the provision. The parties may choose their “red-lines”, but EU law is neutral, promoting “orderliness” as a general proposition rather than the particular interests of either side.

Possibly we have here the answer to the question of whether Article 50 permits a purely tactical withdrawal of a notice. If the price for abusing Article 50 rights by operating the negotiations as a trap is paid only in “legitimacy”, why should this not apply to a Member State who makes a purely tactical revocation of an Article 50 notice? Abusing the potential for action allowed by Article 50 in both cases is highly subjective, so why must the latter alone be justiciable?

Furthermore, to degrade Article 50 into a “trap” makes it harder for future Member State Constitutional Courts, particularly the German Court, to rely on the right to leave to reconcile European integration with state sovereignty.

Dr Dennis Dixon is a lecturer at the Institute of Law, Jersey, and a Legal Adviser at the Law Officers’ Department, Jersey. All opinions are his own.

(Suggested citation: D. Dixon, ‘Wightman and the General Interpretation of Article 50′, U.K. Const. L. Blog (7th Jan. 2019) (available at https://ukconstitutionallaw.org/))

The Government has finally published the delayed Immigration White Paper. Here’s a brief summary of the key proposals and concerns, what employers should do next and how our dedicated Immigration team can help.

As one of the fundamental challenges facing UK businesses post-Brexit, it is really important that you have your say on the proposals. There will be a 12-month consultation process so there is time to think about your response but please register your interest here and we will send further guidance and related events in the New Year.

advocateIntroduction

The Supreme Court has now handed down its judgment in The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – A reference by the Attorney General and the Advocate General for Scotland. The Bill marked a series of firsts: a consequence of the first UK statute to be passed notwithstanding the refusal of consent by the Scottish Parliament (the European Union (Withdrawal) Act 2018); the first Scottish Government Bill to be introduced with a negative statement of competence by the Presiding Officer; and, the first Scottish Bill to be referred to the UK Supreme Court by the UK Law Officers. In previous posts we have set out what it was (legally and politically) that the Bill sought to achieve and why, in our view, the Bill as introduced arguably was (in light of the Presiding Officer’s contrary view) within the legislative competence of the Scottish Parliament. The Court’s analysis was split into two stages. First, was the Bill within competence when it was passed? The Court said yes, with the exception of a single section discussed below. Secondly, would the Bill be within competence when it receives Royal Assent in light of the intervening effect of the EU (Withdrawal) Act? Again, the Court said yes, but ruled that many of the Bill’s most important and distinctive provisions would now fall outside legislative competence.

Here we set out the key parts of the judgment as they relate to the health of the Bill itself and to the assessment of legislative competence more generally, and we also consider what might come next.

The unsuccessful challenges

The UK Law Officers attacked the competence of the Bill on multiple grounds, most of which were unsuccessful. The Court’s rulings on these points are nevertheless important for the guidance they offer on how legislative competence is to be assessed.

The first, and perhaps the most significant of these because it was the ground upon which the Presiding Officer considered that the Bill as introduced was outwith devolved competence, was that the Bill was incompatible with EU law because, in the UK Law Officers’ submission:

… the Scottish Parliament does not at present have the legislative competence to pass an Act containing provisions [in this case, provisions which allow Scottish Ministers to amend the domestic statute book in devolved areas in ways which might be incompatible with EU law] which cannot be brought into effect until current restraints on legislative competence are removed at a future date.

The Presiding Officer’s assessment was grounded in the principle that devolved legislation cannot seek competence prior to the transfer of that competence by UK primary legislation or by an Order under s30 of the Scotland Act 1998. On this basis, the Presiding Officer took the view that “postponing the exercise of powers until a future date may change the legal effect of a Bill but does not resolve the question of its legal validity.” However, the Court’s position was that “[a]bsent such legal effect, there is no incompatibility with EU law”. Whilst the Presiding Officer has been subject to some criticism for expressing a view with which the Court ultimately did not agree, this criticism is misplaced. He was, here, acting (a) in the exercise of a statutory function, (b) on the basis of legal advice that (c) was offered to him with only limited judicial guidance on the point, and (d) which focused minds during the legislative process on a range of possible vires concerns that otherwise might not have attracted scrutiny.

Second, the UK Law Officers argued that the entire Bill was outwith devolved competence because it “relates to” the reserved matter of international relations, including those with the European Union. Applying the well-established principle that in order to “relate to” a reserved matter a Bill must have “more than a loose or consequential connection” with it, the Court held that the Continuity Bill does not “relate to” relations with the EU. It would not take effect until such times as the UK has no relations with the EU save for those developed by a further treaty between the UK and the EU; and it does not purport to regulate the UK side of current negotiations towards such a treaty but instead “simply regulates the legal consequences in Scotland of the cessation of EU law as a source of domestic law relating to devolved matters.” Indeed, the Court took the view that there is little scope for Scottish legislation to “relate to” international relations other than by implementing the UK’s international obligations.

Third, the UK Law Officers were unsuccessful in persuading the Court that the Bill would be contrary to general principles of public law, namely that it undermines the constitutional framework underpinning devolution and that it is contrary to the rule of law principles of legal certainty and legality. Here the Court provided important guidance regarding the scope of the s33 reference power, which it held allows the Law Officers to refer questions relating to the legislative competence of the Parliament only on the grounds set out in s29 of the Scotland Act. Following AXA, we already know that courts may also strike down at common law devolved statutes that are contrary to the Rule of Law, but we now know (although, as Mark Elliott points out, the Court’s reasoning is less than clear) that such common law challenges can only be raised post-enactment, and not via the s33 reference power.

The section 17 challenge

The one exception to the Supreme Court’s conclusion that the Bill was within competence when passed by the Scottish Parliament was s17. This purported to make the exercise of delegated legislative powers conferred upon UK Ministers by Westminster legislation passed after the enactment of the Continuity Bill conditional upon Scottish Government consent when they affected retained (devolved) EU law.

The UK Law Officers attacked this provision on two grounds. First, they argued that it related to the reserved matter of the UK Parliament, on the basis that it attempted to achieve what the Scottish Government had failed to achieve during the passage of the EU (Withdrawal) Act. This argument was rejected. The purpose of the reservation, according to the Court, was to preserve the constitutional functions, powers or privileges of Parliament, but this could not have been intended to protect legislation enacted by Parliament from the effects of legislation enacted by the Scottish Parliament. The Court confirmed that the devolved legislatures do as a general rule have the power to amend or repeal UK legislation, provided that they do not breach specific competence constraints. This is, indeed, such a fundamental feature of the devolution settlements that it was somewhat alarming to see the UK Law Officers attempting to argue otherwise.

The Supreme Court did, however, accept the UK Law Officers’ second argument, namely that s17 amounted to an unlawful modification of s28(7) of the Scotland Act. Section 28(7) states that the establishment of the Scottish Parliament “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”, and is one of the provisions protected against modification under Schedule 4. This was the first time judges have considered what it means to modify a protected statute, beyond its statutory definition in s126(1) as including amendment or repeal. The Court helpfully clarified that the protection of particular statutes against modification does not prevent Holyrood from making additional provision in the same legal field. This followed from the important distinction between Schedule 4 and Schedule 5: the listing of a statute in Schedule 4 does not remove the entire subject matter of the legislation from devolved competence in the same way as it would have done if included in Schedule 5. Nevertheless, modification goes beyond express amendment or repeal of protected enactments to include any provisions which are in substance inconsistent with them.

On that basis, s17 was found to be inconsistent with s28(7). Although the Court accepted that there would in fact be no impact on Parliament’s sovereignty, since Parliament could amend, disapply or repeal s17, it nevertheless considered that – by purporting to limit the UK Parliament’s capacity to authorise the making of secondary legislation by UK ministers – the provision was inconsistent with the continued recognition of Parliament’s unqualified sovereignty, and therefore tantamount to an amendment of s28(7).

This reasoning is difficult to understand, since it appears to adopt a formalistic approach to the meaning of modification of a protected statute at odds with the substantive approach the Court stated ought to apply. This is underlined by the fact that the decision confirms that Holyrood would be able to legislate after the fact to make UK ministerial powers subject to devolved consent, just as they could repeal or amend them in other ways. More generally, the emphasis on the unqualified nature of s28(7) has two further effects. First, it would seem to deny even an interpretive role for the statutory recognition of the Sewel Convention in s28(8), which it has been suggested might have had the effect of protecting devolved legislation against implied repeal by UK legislation passed without express consent. Second, it demonstrates that s28(7) amounts to more than a symbolic restatement of the UK Parliament’s continuing legislative supremacy but in fact creates a justiciable limit on Holyrood’s law-making powers.

Inconsistency with the European Union (Withdrawal) Act

At the date it was passed, most of the Continuity Bill was thus within Holyrood’s legislative competence. However, the subsequent enactment of the EU (Withdrawal) Act changed matters considerably. Although its significance was not widely appreciated, it had been clear all along that the EU (Withdrawal) Act was itself intended to become a protected statute under Schedule 4. Accordingly, it was imperative that the Continuity Bill be enacted before the EU (Withdrawal) Bill in order to avoid being caught by this new restriction (hence why it was treated as an emergency Bill). However, the effect of the s33 reference was to halt its progress to Royal Assent. By the time of the Supreme Court hearing, the EU (Withdrawal) Act had received Royal Assent. Moreover, an amendment made at Lords Report stage ensured that the amendment to Schedule 4 came into effect immediately upon Royal Assent.

As a preliminary matter, the court had to decide whether it could consider the effect of the EU (Withdrawal) Act. Although all three devolved law officers argued that competence should be judged at the date the Bill was passed, the Court concluded that, the wording of s33 (“the question of whether a Bill … would be within … legislative competence”) indicated that it was required to consider the competence of a Bill if it were to receive Royal Assent at the time of the decision.

The UK Law Officers argued that the entire Continuity Bill would modify the EU (Withdrawal) Act, since the latter’s intention was to create a single body of retained EU law across the UK. But, once again invoking the distinction between Schedule 4 and Schedule 5, this argument was rejected. The Court reiterated that Holyrood could legislate on the same subject matter as the EU (Withdrawal) Bill so long as it did so consistently. This meant that provisions in the Continuity Bill which merely restated provision in the EU (Withdrawal) Bill or which clearly supplemented it remained within the Parliament’s legislative competence. However, large parts of the Bill which were inconsistent with equivalent provisions in the EU (Withdrawal) Bill could not survive. These included: the inclusion of the Charter of Fundamental Rights within the definition of retained (devolved) EU law; more generous provision for rights of action based on incompatibility with the general principles of EU law, for challenging the validity of retained (devolved) EU law, and for preservation of Francovich damages; a stronger interpretive duty to have regard to post-Brexit CJEU decisions; and ministerial powers to rectify deficiencies in the devolved statute book, which were stated in both broader and more constrained terms than the equivalent powers in the EU (Withdrawal) Act.

What now?

The immediate decision now facing the Scottish Government is whether to remove the offending provisions and proceed with the Bill. Although there might be a practical attraction in abandoning the Bill, and with it the complexities of co-existing schemes for Scotland and for the rest of the UK, there might be life in the Bill yet. In his ministerial statement in response to the judgment, the Lord Advocate stressed important provisions that remain intact: s12 (ministerial powers relating to compliance with the UK’s international obligations), s13 (ministerial powers that allow for Scotland to ‘keep pace’ with future developments in EU law post-Brexit) and s26A (a ministerial duty to prepare and consult on proposals concerning the protection of environmental principles). The Lord Advocate has said that the Cabinet Secretary will now consider carefully the terms of the judgment and will consult with all parties on the way forward.

In the medium term, the Scottish Government will also wish to reflect on the broader implications of the judgment for its legislative agenda. On the one hand, whilst the Court rejected the argument that the Continuity Bill itself “relates to” relations with the EU it also left a reminder that “different considerations may arise” regarding further legislation that is required to implement the terms of withdrawal or the UK’s future relationship with the EU. On the other hand, the guidance issued by the Court concerning what constitutes a “modification” to a protected statute seems to give encouragement to the Scottish Government’s commitment to take forward the recommendations of the First Minister’s Advisory Group to introduce new devolved legislation that both restates the rights protected by the Human Rights Act 1998 (itself a protected statute) and supplements these with, inter alia, economic, social, cultural and environmental rights.

As well as its legal importance, the reference has had at least a two-fold political significance. First, whilst the unsuccessful political objective behind the Bill was, first and foremost, to pressure the UK Government to make concessions to the EU (Withdrawal) Act to which the Scottish Government felt able to consent (thereby rendering the Scottish Bill redundant), the Bill has nevertheless served a second political purpose. By holding that (s17 apart) the Bill was within Holyrood’s legislative competence when the legislation was passed, the judgment provides ammunition to those for whom the UK Government’s intervening actions were underhand and for whom the EU (Withdrawal) Act amounts to a unilateral “power grab” by Westminster from Holyrood. Second, because the statutory functions of the Presiding Officer and Law Officers are exercised in a political context, their response to the decision will be important. If the political criticism of the Presiding Officer cuts through, he might become more risk averse about making public (by making a negative statement) any disagreement with the Scottish Government about legislative competence. Likewise, if references by the UK Law Officers produce a more generous approach to devolution by the courts than they might have expected this could (as has been the experience following unsuccessful references in Wales) lessen the UK Government’s appetite to use this procedure again. Alternatively, if neither feels that the sky has fallen down, we might expect to see the disputes about competence that we know go on behind closed doors publicly aired and tested more often in future.

Christopher McCorkindale is a Lecturer in Law at the University of Strathclyde.

Aileen McHarg is Professor of Public Law at the University of Strathclyde.

(Suggested citation: C. McCorkindale and A. McHarg, ‘Continuity and Confusion: Towards Clarity? – The Supreme Court and the Scottish Continuity Bill’, U.K. Const. L. Blog (20th Dec. 2018) (available at https://ukconstitutionallaw.org/))




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