From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 29 September 2016

Brexit - who has the power to change UK law?

There are two kinds of general European Union laws. EU Regulations are directly effective in all member states.  In the UK, this is recognised by Section 2(1) of the European Communities Act 1972, which provides that:

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...

EU Directives are not directly effective, and need to be enacted in each member state in order to achieve the goal set out in the Directive.  In the UK, this is sometimes done by primary legislation (Act of Parliament), which is, for example, how the Trade Marks Directive (89/104/EEC, later repealed and replaced by EU Directive 2008/95/EC and then further amended by Directive (EU) 2015/2436) was implemented as the Trade Marks Act 1994.

But a Directive can also be implemented by secondary legislation - a Statutory Instrument in the form of an Order in Council, which receives only minimal Parliamentary scrutiny.  The power to do this is set out in Section 2(2) of the ECA, which provides:

Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision—
(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or
(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;
and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid.
It was a departure from the previous general constitutional order in the UK that legislation could be made, and even primary legislation amended, by secondary legislation.  The Designs Directive was implemented in this manner, wherein SI 2001 No. 3949 amended the Registered Designs Act 1949 to produce an effectively entire new act, within the shell of the original.

Some readers may recall that the constitutionality of this was challenged in the case of Oakley v Animal, reported by the IPKat here.  The argument was that where the Directive allowed some latitude in the manner of its implementation, the decision as to which of several available options to adopt was a matter of legislative discretion that constituted a power not given to a Minister under Section 2(2) ECA, but required an Act of Parliament.  That argument was rejected.

The Registered Designs Act has been further amended by primary legislation, for example in the IP Act 2014.

It is estimated that there are 1000s of Statutory Instruments (nobody knows the precise number in force) made under s 2(2) ECA, and so it is of great concern what happens to them if the UK leaves the EU.  While some commentators have argued that the ECA does not have to be repealed on departing the EU (it can remain in place but with no "rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties" to bite on), many assume that it will have to be repealed or at least amended.  It was for that reason that the IPKat was keen to know what is the default position if the ECA is repealed.  Scott Wortley has in response blogged an argument, that this Kat finds compelling, that the SIs will fall away if the ECA is repealed.

But in fact, whatever is the default position, before any exit from the EU, some functionary will have to scrutinise all the SIs in force and decide which should stay, which should go, and which should be retained in amended form.  There are some SIs, such as SI 2001 No. 3949 amending the Registered Designs Act 1949 mentioned above, that it would be pretty catastrophic to lose.  Some will be clearly in applicable or nonsensical if the UK is not in the EU, and these will need to be repealed.  Others it will be probably be desirable to retain, but they may refer to an EU institution or law that no longer applies and they will need amending - the problem is that this will then probably need to be done by primary legislation, and where will the Parliamentary time come from?  A blanket saving or repealing provision will not suffice - there needs to be decision taken on each individual SI.

Against this background, this Kat finds it rather surprising that the Government considers that the taking and notifying a decision to leave the EU is a prerogative power and not a Parliamentary power.  Moreover, until yesterday its reasons to think this were secret.  There is shortly to be heard in the Divisional Court of the Queen's Bench a legal challenge to the proposition that the Government can take a decision to leave the EU and notify this under Article 50 of the TEU without any Act of Parliament.  (There is a similar challenge being heard in the High Court in Belfast). But the Government secured an order (at the hearing that this Kat reported here) keeping the submissions secret, until yesterday when this was successfully overturned by the challengers.  So now, the arguments of both the challengers and the Government can be read - see here and here.

This Kat is not an expert on constitutional law or international law, although he is learning more and more about it as these events are unfolding, and so will not attempt to comment in detail on the arguments.  In summary, however, the Government's legal position appears to be that signing up to international treaties is a matter for the Crown, not Parliament, and is not justiciable by the Courts.  But this seems to be only partially true.

Signing up to a treaty happens in two stages.  First, the treaty is signed, but at that stage it has no legal effect.  Then, at least in the UK procedure, if the treaty has an effect on domestic law, Parliament must pass an Act conforming UK law to the requirements of the treaty.  Then, and only then, can the treaty be ratified, whereupon (once the treaty comes into force) it becomes legally effective with respect to the UK.  While the procedures of signing and ratification are Crown acts that are performed by the Government under prerogative powers, the requirement for an Act of Parliament in between effectively gives Parliament the ultimate decision as to whether the UK becomes bound by the treaty.

This process can be seen, for example, in respect of the Unified Patent Court Agreement.  It was signed by a Government minister in 2013.  But then in the IP Act 2014 Parliament gave the Government the legal power to enact a Statutory Instrument to give effect to the UPCA, and this was enacted as the Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 - SI 2016 No. 388 passed on 12 March 2016.  Only now can the Government deposit an Instrument of Ratification, which of course it has not done because of the intervening Referendum result.  (A similar order of events happened with the Patents Act 1977, which enabled the ratification of the European Patent Convention.)

Similarly, if Parliament had not passed the ECA 1972, the UK would not have been able to join the European Communities (as they then were).

So it seems odd if the Government can take a decision under Article 50(1) and notify it under Article 50(2) TEU, which will inevitably result in the UK leaving the EU, without the equivalent intermediate step of a Parliamentary enactment.

Another way of seeing the inconsistency of the Government argument is this.  If the Crown has the power to leave the EU without Act of Parliament, then it has always had it.  The Referendum Act contains no provision that alters the constitutional position - it provided for a referendum on EU membership, defining the question to be asked, but without specifying what was to be done with the result.  For that reason it is often referred to as "advisory".  Therefore, if the Government has the power to take the UK out of the EU today, then it equally had the power one year ago.  But I do not think anyone would have seriously argued before the Referendum that the Government could take the UK out of the EU under prerogative power without any Parliamentary approval.

The Government argues that Parliament will of course have a role in any repeal or amendment of the ECA 1972 and other EU-related legislation during the leaving process.  But since Article 50 leads inevitably to the leaving of the EU (at least according to most commentators, and this seems the most likely correct interpretation), then once a notification of a decision to leave the EU has taken place, Parliament has no choice but to repeal or amend EU-related legislation according to the new reality.  It is deprived of any genuine political decision-making power.

This Kat will be following the Court cases with great interest.  For commentators more knowledgeable than him, he suggests David Allen Green, who blogs as Jack of Kent.  In the meantime, comments are warmly welcomed.


35 comments:

Anonymous said...

This all makes good sense.

My guess is that the reason the government is arguing this case is to test the law, expecting to lose. Otherwise, the keener Leavers may continue to moan that there was a quicker and easier way out of the EU.

Proof of the pudding said...

Interesting.

Whilst the UK has enacted legislation mandating the involvement of Parliament in the ratification of treaties, there is a complete absence of legislation on the provisions applying when the UK withdraws from a treaty.

This does rather leave it open for the government to argue, as they appear to do, that there is an asymmetry in the way in which Crown prerogative can be exercised when either signing up to or withdrawing from a treaty.

This appears to be more of a legislative omission than a deliberate decision of Parliament to allow ministers to use the prerogative to withdraw from a treaty without being given the express authority by Parliament to do so. However, this omission has certainly set up an interesting situation.

Can the result of a referendum be binding upon Parliament if the legislation enabling the referendum did not indicate that it would be so?

Also, is the government really trying to simultaneously argue that what is said in the "hurly burly" of Parliament should not be taken seriously when it comes to the contracts of junior doctors, but that statements made in Parliament in relation to the referendum should be seen as (constitutionally) binding?

Whatever the answers to these questions, the need to further constitutional reform has become painfully evident.

Rodeo said...

"Parliament has no choice but to repeal or amend EU-related legislation according to the new reality."

Not true. The notification of the UK Government to the EU under the Treaties does not itself change UK legislation. It is certainly not a legislative act in and of itself. However, it starts a defind process which has as its end consequence, automatic if no alternative is negotiated, of the UK no longer being a member of the EU without any transitional arrangements. Therefore, the UK's leaving of the EU is an external (Treaty-driven) event, to which Parliament would then need to respond in whatever manner it chooses. It can, for example, refuse to act, and then there may be inconsistent or irrelevant legislation on the statute books. That is a situation which the Courts would have to resolve until Parliament does legislate.

In many ways, this whole situation emphasises the problems in outsourcing legislative power to a supranational body.

Anonymous said...

"While the procedures of signing and ratification are Crown acts that are performed by the Government under prerogative powers, the requirement for an Act of Parliament in between effectively gives Parliament the ultimate decision as to whether the UK becomes bound by the treaty."

In practice the Government does ensure that any necessary Act of Parliament is passed before it ratifies a treaty. But is that a requirement? Or merely common sense?

In other words, does the Government's prerogative extend to ratifying a treaty without asking Parliament to pass corresponding legislation, and then facing the consequences?

In the case of Brexit, I'm not sure common sense comes into it. The consequence of triggering article 50 without Parliament's consent would be that two years later they would be asking Parliament to enact any legislation required to implement whatever deal had been negotiated. They would present Parliament with a fait accompli. If Parliament then said no, the result is pretty certain to be even worse than if they said yes. So they will be forced to say yes, whatever they might think privately.

Minimalist said...

How about this: Parliament actually HAS ratified the TEU including its Art. 50, which actually provides for the possibility of a Brexit without further parliamentary act...

Anonymous said...

"But I do not think anyone would have seriously argued before the Referendum that the Government could take the UK out of the EU under prerogative power without any Parliamentary approval."

Subject to the legalities being considered in the Court, I would say that there was a real argument that the government could have taken the UK out of the EU a year ago. As you say, the result of the referendum is only advisory (the Act certainly had no wording that could be considered otherwise). You are arguing that there was no basis for doing so and the referendum could not have changed this position. I agree that the latter is correct, but that does not support an argument that there was never any basis.

Anonymous said...

If parliament has prerogative powers to sign up to a Treaty, it must have such powers to withdraw? Enactment of Treaty provisions may require parliamentary approval, in which case, so does un-enactment, where desired. EU Regulations may still apply when we withdraw in the same way that National laws enacted based on EU Directives will continue to apply, unless and until Parliament changes them.

There may be a lacuna in the judicial processes, for example, once we are outside the EU, but maybe there are the same issues within the EU legal framework so that we are still in even when we are out.

Like others, I am not a constitutional lawyer, but happy to share my two-penneth.

Anonymous said...

All government departments are, in fact, going through exactly this exercise of identifying all of the secondary legislation that will need to be saved in a reform bill. This giant effort, somewhat hindered by the downsizing of government over the last few years, leads to the far harder thought.
Ministers will have no powers to act in many areas of policy after the ECA is repealed as there will be no primary legislation granting them powers under which they can act. As a result there will be a horrific backlog of parliamentary business as each ministry tries to put forward new bills in their own areas, if only to allow their ministers to pass regulations which keep us up to date and compliant with any new European rules that are connected with our continued access to the single market.

Darren Smyth said...

Dear All - thank you for so many comments. A few thoughts in reply.

To Rodeo - I meant no practical choice. I don't see "refuse to act" as a genuine choice even if a theoretical possibility. "there may be inconsistent or irrelevant legislation on the statute books" is a huge understatement.

To Minimalist - I have seen that argument, but I don't think it holds water. Article 50 (of itself or as incorporated into UK law) cannot be the legal basis for the decision being made, because Article 50(1) refers outside itself to "its own
constitutional requirements". So I think that is a red herring.

To Anon Friday at 13:53 I think if the Government had announced a year ago on a whim out of the blue that the UK was leaving the EU, there would have been very few voices arguing that it was constitutionally possible for that step to be taken under prerogative powers. And I find it hard to believe a Court would have upheld it. But I accept that is just my opinion. I think we agree that the timing does not in fact change the constitutionality, one way or the other. I also think that most of the Government arguments submitted to the Court become moot without the reality of the referendum, but that may just be a weakness of the argumentation presented.

Anon Friday at 14:01 - the usual terminology is "prerogative" referring to Crown powers exercised under the Royal prerogative by Government ministers independent of Parliament. I don't see how EU Regulations can apply when we withdraw from the EU.

Anon Friday at 15:44 - Indeed this operation is already underway. I have also seen a proposal that Parliament should give Ministers powers (I suppose similar to S 2(2) of ECA) to retain, repeal, or amend any legislation deriving from EU by means of secondary legislation; this would be practical but very undemocratic.

Best wishes

Darren

Anonymous said...

If a government was elected having EU withdrawal as a manifesto pledge (or in the case of the Liberal party, a manifesto pledge to absolutely not withdraw from the EU) then that is not a whim. Governments can also change their policies at will, so whims are within their remit.

Is it commonplace for the blogger to correct, in his opinion, every comment made?

John Foxe said...

Listen to the recent episode of Unreliable Evidence with Richard Gordon and Martin Howe. All agreed triggering Art 50 falls under Crown prerogative.

Parliament's only weapon to a prerogative action it does not like is a vote of no confidence.

Anonymous said...

Mark Elliott and Stephen Tierney discuss the House of Lords Constitution Committee report:

http://www.centreonconstitutionalchange.ac.uk/blog/house-lords-constitution-committee-reports-article-50

"Parliament may wish, in future, “to ensure that detailed consideration is given to how the result of a referendum will be implemented in advance of the vote itself occurring, and to whether explicit provision should be made in the enabling legislation either to implement the outcome automatically or to instruct the Government to act on the result ...

.. The Committee therefore avers that it would be “constitutionally unacceptable, not to mention setting a disturbing precedent, for the Government to act on an advisory referendum without explicit parliamentary approval—particularly one with such significant long-term consequences”
".

Anonymous said...

It has just become known that procedure according to Art 50 will be started fore the end of March 2017.
The European communities act of 1972 will be repelled and a Great Repeat Bill will be decided.

It becomes thus clear that the Brexit is on its way.

Anybody claiming from now on that UK should ratify the UPC soon should loose their illusions.

Ashley Roughton said...

The ECA '72 (passed - obviously - before the '75 referendum and after promises were made that the UK could always veto anything it didn't like - promised by Heath, delivered by Wilson) has within it the seeds of is own destruction. If article 50 is activated then after the two year period there are no obligations "... created or arising under the Treaties ...". Hence no need to repeal the ECA '72 ... in the right circumstances. The question is, what are they?

One line of argument might be that it follows from the above that it is not a matter for parliament to legislate or repeal. The real question might then be whether article 50 is something which can be activated by the government or by the government with the fiat of parliament. It is that uncertainty which will occupy the thinking of the court in the upcoming case. For that reason, whatever the result, it will be helpful.

Ashley

Gilman said...

I'm honestly not sure that the argument that "X must be the case because, if Y were true, the statute book would become a mess" really holds any water.

For the government not to have this power, then it must have always not had this power. This is very obviously not the case.

At present the government may make war, peace, sign and annul treaties without explicit parliamentary approval. It is only where these treaties require implementing into domestic law that parliament becomes involved. Where we withdraw from treaties, this is also the government's decision, though of course parliament has the job of amending (or not amending) the statute book correspondingly.

It is therefore hard to see how any argument that, if it succeeds, results in the government not being able to notify Art. 50 (which is a matter of international law) without parliamentary approval would amount to anything but a massive expansion of parliamentary power beyond its present extent. It will likely fail for at least this reason.

Proof of the pudding said...

TM's comments over the weekend make it clear that she really does not expect to lose the case pending before the High Court. That is, the deadline of March 2017 for triggering Article 50 would be unachievable if the government were forced to first pass enabling legislation.

Does Theresa know something that we do not? At this point, the fate of the High Court case looks decidedly uncertain. Given the long-term ramifications of the triggering of Article 50, one would have thought that it would be desirable to be absolutely certain that one is using the correct procedure in order to effect such an important change to the legal order in the UK.

Even if the outcome of the court case is that the government is entitled to use royal prerogative, there is a completely separate question of whether it should be used. This is not least because it would result in constitutional change being effected in the UK without having first been approved by Parliament.

There is no doubt in my mind that the outcome of the referendum must be respected. That is, there should be no going back and asking the same question again in the hope of getting a different answer. However, one has to consider carefully what the electorate was actually asked and what answer was given.

The question asked was very open and unqualified. The answer given (ie "leave the EU") is therefore necessarily lacking in the kind of detail that is absolutely required in order to interpret how we should leave the EU. Whilst it is all very well pointing to significant aspects of the debate (including the issue of immigration), the electorate did not indicate that those issues were decisive. This is because the electorate was not asked why they wanted to leave the EU.

All of this points to a fundamental error of judgement in the manner in which the EU referendum was set up. There really was no "Plan B".

We also need to consider that the consequences of leaving the EU were (and still are) very hard to predict. This enabled the "leave" campaign to make combinations of promises that may well be undeliverable (or, in some instances, mutually exclusive) in the cold light of day.

Getting a mandate from Parliament not only to trigger Article 50 but also to set priorities for the exit negotiations with the EU would be a neat way of "fixing" all of the problems with the way that the referendum was set up. Thus, even if it is not strictly necessary to do so, it would be hugely beneficial to the future stability of the UK (and its democratic principles) if Parliament were handed responsibility for exiting the EU.

Indeed, it really would be ironic if the outcome of a campaign to "take back control" was the bypassing of Parliament by the exercise of royal prerogative. Not exactly the kind of "control" the electorate had in mind, methinks.

Proof of the pudding said...

I should add one more point. Of those who voted, 52% indicated a desire to leave the EU. There are likely to have been a large variety of different motivations for individual voters reaching that conclusion. Whilst concerns about immigration were clearly prominent, can we really conclude that the referendum gives the government the mandate to bring an end to the free movement of people to and from other EU Member States?

I would suggest that it is very hard indeed to conclude that the government does have such a mandate. This is because it would require more than 96% of those voting "leave" to have done so (at least partly) on the grounds of a wish to bring free movement of people to an end. It is inherently unlikely that those voting "leave" would have such an astonishing unity of purpose. We therefore face the very real prospect that the majority of those voting actually wanted to retain free movement.

Given the huge range of possible ways to exit the EU (including becoming a member of the EEA), it is simply not possible to conclude that those voting "leave" necessarily accepted that the loss of free movement was an unavoidable consequence of leaving the EU.

Considering the above, it is clear that TM does not have any kind of mandate whatsoever from the electorate to achieve specific objectives, other than simply to leave the EU. It is therefore not only desirable but absolutely necessary for the functioning of our democracy for Parliament to step in to fill the void upon precisely how we leave the EU.

Gilman said...

"Getting a mandate from Parliament not only to trigger Article 50 but also to set priorities for the exit negotiations with the EU would be a neat way of "fixing" all of the problems with the way that the referendum was set up. Thus, even if it is not strictly necessary to do so, it would be hugely beneficial to the future stability of the UK (and its democratic principles) if Parliament were handed responsibility for exiting the EU."

It would also amount to a massive expansion of parliamentary power into an area in which it has never before existed. Parliament does not negotiate treaties, not does it invoke exit-clauses in them, the government does this as it is the government, not parliament, which is an actor in international law. It really is that simple.

Parliament of course, could take a view on the performance of the government and make a vote of no confidence. Alternatively it can defeat or amend the so-called "Great Repeal Bill" (which far from repealing EU law, will enshrine it in UK law). Or it could make an early-day motion on the subject.

I voted Remain and want to stay in the single market. This weekend's announcements dismayed me. But I cannot see any real chance of stopping the invocation of Art. 50 through the courts since the arguments against it seem so flimsy: the ECA is not being repealed or amended, it will simply no longer have any EU law to bite on.

Proof of the pudding said...

Gilman: by your own admission, the mere act to triggering Article 50 will inevitably lead to a change in the legal order in the UK. That is, ceasing to be an EU Member State (which is an inevitable consequence of triggering Article 50) will remove certain rights and obligations that only apply to UK citizens and corporations due to the UK's membership of the EU.

Your position would only make sense if it were possible to leave the EU without the legal position in the UK changing one iota in any area currently covered by EU treaties or legislation. However, as that is a fanciful concept (which surely no one can seriously be advocating), then we need to consider the asymmetry that exists in the UK between signing up to a treaty and withdrawing from the TEU / TFEU.

For signing up to a treaty, royal prerogative can be used. However, Parliament retains the power to confirm (or deny) the effect of the treaty in UK law. Constitutional reforms in 2008 and 2010 have now given a statutory footing to the "Ponsonby rule" that has long provided Parliament with this power.

On the other hand, once Article 50 is triggered, Parliament can do nothing whatsoever to prevent the legal order in the UK changing once the UK (inevitably) ceases to be an EU Member State.

Thus, unless Parliament authorises the triggering of Article 50, legislative change would be effected in the UK in a manner that completely bypasses Parliament. Retaining (or asserting) control over the triggering of Article 50 would therefore not in any sense represent an expansion of Parliamentary power. On the contrary, it would merely ensure that Parliament retains its exclusivity over the enactment of (changes to) legislation in the UK.

To be honest, the only "flimsy" argument that I see in all of this is the suggestion that Parliament should not be involved simply because repeal of relevant legislation is not strictly required. The stupidity of this argument becomes plain when you realise that leaving EU-related legislation (eg the ECA) on the statue book will only be workable if new legislation is enacted that "saves" the old. Further, some rules will be beyond saving (eg those that will become nonsensical once the UK is no longer an EU Member State).

To put it another way, triggering Article 50 will destroy a legal edifice that Parliament has spent many years constructing. To then tell Parliament that they have no say about how or when the wrecking ball is taken to their efforts seems absurd.

Gilman said...

"On the other hand, once Article 50 is triggered, Parliament can do nothing whatsoever to prevent the legal order in the UK changing once the UK (inevitably) ceases to be an EU Member State."

That change in the legal order of the UK will, however, occur through the functioning of the ECA - that is, this is all the result of a parliamentary act. The entire purpose of the ECA is to, in as much as was possible, give effect to EU law in the UK. This includes giving no effect to EU law when that law no longer extends to the UK. The ECA even appears to contemplate this in its reference to "obligations and restrictions from time to time created or arising by or under the Treaties" - that is, they may not arise all the time.

"triggering Article 50 will destroy a legal edifice that Parliament has spent many years constructing. To then tell Parliament that they have no say about how or when the wrecking ball is taken to their efforts seems absurd."

For something to be unfair, stupid, damaging, does not make it illegal.

Proof of the pudding said...

Gilman: all very well, but you fail to address the substance of the argument.

There is a difference in effect (in law) between signing up to and withdrawing from a treaty. Following the principles of the Ponsonby rule would therefore lead one to the conclusion that there ought to be a corresponding difference in how (or indeed whether) royal prerogative is exercised.

You also need to think about Darren's argument. That is, what would be the legal basis for exercising the prerogative? Given that the referendum was only "advisory", can it really be asserted that the result of the referendum provides adequate legal basis on its own? If not, are you seriously suggesting that ministers could at any time exercise the prerogative to withdraw the UK from any treaty without first being given authorisation by Parliament to do so?

Also, please consider whether there is a (post-WWII) precedent for use of the royal prerogative (alone) to withdraw the UK from a treaty. If there are no such precedents, is it really credible to assert that an archaic prerogative (the scope of which has been progressively eroded by Parliament over the course of more than 300 years) can be used to undermine principles that are fundamental to modern democracy in the UK?

Proof of the pudding said...

Gilman: another thing. You failed to complete the quote from the ECA. A more complete quote is "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".

Forgive me, but this appears to make it clear that the "rights, powers, liabilities, obligations and restrictions" as well as "remedies and procedures" are all positive "rights", etc. This is because the reference to "are without further enactment to be given legal effect" would make no sense at all if there were no such "rights, ..." that might provide a legal effect.

Rodeo said...

A corollary. What would happen if the EU were to dissolve itself? Parliament would have no direct say, since such an act would be constrained only by the Acquis, the Treaties and the various aspects of international law pertaining thereto. Yet the effect would be similar to an Article 50 exit. Parliament would simply be left picking up the pieces and fixing national law as best it could. Is that not the same here? Not all events that compel Parliament to act are within the control of Parliament.

Rodeo said...

I like that quote.

"... all such ... procedures ... provided for by ... the Treaties ... without further enactment ... shall be... allowed ..."

Including the Art 50 procedure, no?

Gilman said...

Also, please consider whether there is a (post-WWII) precedent for use of the royal prerogative (alone) to withdraw the UK from a treaty.

Let us imagine that the UK government decided to withdraw, say, from the Ottawa treaty.

Under the position I am putting forward, leaving this treaty requires two things to happen: the first is that the government would give notice under article 20(2), the second is that parliament would vote to (or not vote to) remove the Landmines Act 1998 (and remove/amend other associated statute) from the statute book. The first act addresses the UK's permission under international law in respect of the treaty, the second the position in domestic law.

Under the position you are putting forward, parliament would first have to authorise the government to give notification of withdrawal through a vote, and only then could notification be given. I can see a cart leading a horse here, and I think you can too: the government is the actor in international law, not parliament, and no express permission from parliament is required for the government to act, nor should there be given the requirement that the government be capable of rapidly acting in an emergency.

As for examples, think of the Second Peking Convention (a so-called "unequal treaty" concluded after the Boxer Rebellion) which was set aside by mutual agreement for the purposes of concluding the Sino-British Joint Declaration (1984). No permission from parliament was needed for this to be done in terms of international law, though of course legislation from parliament was eventually needed to give effect to the Joint Declaration (the Hong Kong Act 1985).

For another example, the UK was a signatory of the South-East Asia Treaty Organisation (SEATO). That organisation was disbanded through mutual agreement of the parties in 1977. No Parliamentary approval was needed to do this. You may look in vain on the statute book for anything more than orders in council establishing the status of SEATO vis-a-vis domestic law.

The two above are merely examples which I am aware of due to my interest in East Asian history - I'm sure there are many more examples of treaties from which the UK has withdrawn without authorisation from parliament. Many treaties do not require ratification and therefore do not involve parliament at all.

Gilman said...

@PotP -

"That is, what would be the legal basis for exercising the prerogative?"

The basis would be that the government has the power to do this under the prerogative, has always had the power to do this, and now wishes to do it. As we know, the referendum was essentially advisory - the government is now exercising its powers to act on that advice.

"are you seriously suggesting that ministers could at any time exercise the prerogative to withdraw the UK from any treaty without first being given authorisation by Parliament to do so?"

Essentially yes. Our government is empowered to do any number of things: make war, make peace, conclude and withdraw from treaties, without prior approval from parliament. At its most extreme, our government could, for example, carry out a nuclear strike against an aggressor within minutes of being warned of an incoming attack - do you really think that prior parliamentary approval should be needed for this?

There seems to be a degree of assuming what the answer should be and trying to reason your way to it here, rather than looking at our constitution and seeing what the answer is.

"that might provide a legal effect."

Only for as long and in as much as those rights exist under EU law as implemented into UK law by the ECA, and not a second longer. No EU law, no rights under the ECA.

Proof of the pudding said...

@Rodeo: Are you talking about the EU being "dissolved" by mutual consent of the Member States or by some other mechanism? If it was essential for the UK to take action to achieve that dissolution, then similar constitutional issues may well apply.

However, this is all highly speculative, whereas the procedure for withdrawal from the EU is not. That withdrawal must be achieved in accordance with the UK's constitution. The answers that we are seeking in the present context will therefore only be found by examining what provisions and principles under UK constitutional law are applicable to the triggering of Article 50.

Further, with regard to your (selective) quoting from the ECA, please see Darren's response above to Minimalist.

@Gilman: Hmmmn. I remain unconvinced.

First of all, there is really only a single step to leaving the EU. Whilst Parliament may be able to act to "save" some EU-derived rights and laws, many will be lost irretrievably upon EU exit. It is the latter point that I see as being particularly tricky from a constitutional perspective (and this is not even to mention issues relating to the devolved Parliaments and Assemblies).

My main concern is the apparent lack of constitutional safeguards. For example, what could prevent a foreign state bribing the necessary ministers to act against the UK's national interest by triggering (irreversible) withdrawal from an economically important treaty? Or, more realistically, what if there had been no referendum but instead just a newly-created government policy to leave the EU (with no basis either in a manifesto pledge or in legislation passed by Parliament)?

It really would be quite worrying if there were a complete absence of checks and balances upon the exercise of royal prerogative. What would that say about our system of democracy in the UK?

And what ever happened to the principle of Parliamentary sovereignty, which is "the most important part of the UK constitution" (https://www.parliament.uk/about/how/role/sovereignty/)? If it really is true that "Parliament the supreme legal authority in the UK, which can create or end any law", how does that fit with the use of royal prerogative to trigger departure from the EU, thereby inevitably nullifying (or rendering inoperable) many laws?

I can see how withdrawal from treaties not having effect in the UK (e.g. treaties relating to territories in East Asia) might be affected without infringing the principle of Parliamentary sovereignty. However, it is impossible to argue that EU treaties (and associated legislation) do not have effect in the UK.

FOARP said...

"For example, what could prevent a foreign state bribing the necessary ministers to act against the UK's national interest by triggering (irreversible) withdrawal from an economically important treaty?"

Asides from accepting bribes being illegal?

Or, more realistically, what if there had been no referendum but instead just a newly-created government policy to leave the EU (with no basis either in a manifesto pledge or in legislation passed by Parliament)?

In that circumstance a vote of no confidence might be held, or if there were sufficient agreement a law might be passed restraining the government from doing it.

what ever happened to the principle of Parliamentary sovereignty

It is one of the great absurdities of this referendum that it was won partly on the basis of upholding parliamentary sovereignty, but that parliament will essentially have no say in any actual deal.

Events have conspired to rob parliament of a voice in this: a vote on a referendum apparently taken in the belief that a Remain win would be inevitable, a spineless and incompetent opposition that effectively is led by people who favour leaving the EU for ideological reasons of their own, a pro-EU conservative back-bench which is now strait-jacketed, the prospect of an early election quieting all.

it is impossible to argue that EU treaties (and associated legislation) do not have effect in the UK.

It certainly is impossible to argue this, but the mechanism by which they were given effect in the UK is the key here - and I cannot see how there is much hope of challenging the removal of these rights (under which I have worked in the EU, and my wife presently lives in the UK) given the ECA.

I hope that a debate can be held in parliament on invoking Art. 50, possibly an early-day motion debate such as those which in recent years have been held before carrying out military action.

Proof of the pudding said...

@Gilman

"There seems to be a degree of assuming what the answer should be and trying to reason your way to it here, rather than looking at our constitution and seeing what the answer is".

Not quite. I simply try to understand which constitutional principles might apply. This means that I do not assume that the absence of explicit provisions in statute enables one to reach the conclusion that "anything goes" (or, in this instance, "assume that royal prerogative still applies").

It is perhaps on the question of whether the relevant principles do apply that you and I differ. My view is that they should, or at least that those principles should be applied even if the government might not be strictly bound by them. My concern is that if they are not, then a disturbing precedent could be set.

Gilman said...

"assume that royal prerogative still applies"

Given that the Crown was all-powerful, but that this power was then steadily taken away from it and limited, it is reasonable to say that all power not taken away from it remains with it.

We know that the government has the power to conclude and withdraw from treaties for the purposes of international law, with only those treaties requiring ratification or otherwise requiring domestic legislation to be implemented into UK law requiring a parliamentary vote. We know that the government does do this. We can see that the ECA even considered the possibility of rights no longer applying. We can even see that, in the ministerial powers such as the power to grant and revoke passports, the prerogative can and has been used to grant and restrict freedoms such as the freedom of movement.

What remaining argument can there be that the government has this power, other than "this is wrong"?

My concern is that if they are not, then a disturbing precedent could be set.

This is not even a disturbing precedent, this is disturbing in and of itself even without considering the precedent it might set. However, there are good constitutional reasons why the government should fight the idea that parliament must necessarily authorise Art. 50 as a matter of constitutional law. The government must be free to act rapidly in an emergency, and this includes (for the purposes of international law) withdrawing from treaties, even treaties which may (in co-operation with national law) result in rights being conferred on people in the UK.

My view is that they should, or at least that those principles should be applied even if the government might not be strictly bound by them.

"Not strictly bound by them" is to say, not bound by them. And this is all that really matters in this case.

I still favour a greater role for parliament in this. I just can't see the constitutional argument that necessarily leads to that result, and can even see why it is undesirable for this to be the case as it leads to an expansion of parliamentary power.



Proof of the pudding said...

@Gilman

And here we get to the nub of it. You believe that our constitution does not consider context in connection with the exercise of royal prerogative, whereas I am not so sure.

The context that I believe should be considered here is that we are not talking about just any international treaty, but a treaty that forms the foundation of a very significant proportion of our national laws. With the national so inextricably tied to the international, and with the triggering of Article 50 providing irreversible effects, I believe that this provides ample room for argument that the principle of Parliamentary sovereignty trumps royal prerogative on this occasion.

Let's face it, can you really envisage a situation in which it would be imperative for the government to act with extreme haste (ie with literally no time to even ask Parliament to pass a resolution) to withdraw from an international treaty that governs laws in the UK?

And when it comes to the EU, Article 50 provides for a period of at least 2 years before the withdrawal becomes effective. Are you really telling me that this is a context in which the government could plausibly argue that they need to retain the ability to take action at the drop of a hat?

And let's not forget the Ponsonby rule and the constitutional reforms of 2008 and 2010. These firmly entrench the principle of Parliamentary sovereignty when it comes to providing legal effect to the provisions of international treaties under UK national law. Why should it therefore be assumed that Parliamentary sovereignty does not also apply to the withdrawal of the effect under UK law of provisions of international treaties?

You may be right that none of this matters and that it really is the case that the Crown has not relinquished the right to withdraw from any international treaty without consulting Parliament, regardless of whether doing so makes a mockery of Parliamentary sovereignty.

Given the absence of a codified constitution, we will only know who is correct when the Appeal (or even the Supreme) Court rule on this matter. At least we both agree that the use of royal prerogative at this time would be disturbing.

Anonymous said...

Article 50 does not provide for a minimum of two years before the withdrawal becomes effective.
It provides for a two year maximum...

Proof of the pudding said...

@anon

To quote from Article 50:
"the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament".

So you really think that it will be possible for all of that to be completed in less than 2 years? Of course we have to acknowledge that it is a hypothetical possibility, but we are talking about the real world here.

We also have to acknowledge that the UK has no control over the timetable, as that will be dictated by other factors, such as the approach that the Union adopts during negotiations, and whether the agreement concluded with the Union is approved by both the European parliament and the Council.

If anything, this rather reinforces my point about the lack of any urgency for the triggering of Article 50.

And if it is indeed true that royal prerogative can be used to withdraw from such an important treaty (for legal rights in the UK) as the TEU / TFEU, then what about other important treaties? Are you satisfied, from the perspective of the UK constitution, that the government would be free to withdraw from many important treaties without either a manifesto commitment or consent from Parliament to do so?

Let's just pick the Paris Convention as an example. What would you do if the government signalled an intention to withdraw from that treaty without first debating the issue in Parliament? What if the government had a large majority in Parliament and their MPs were unwilling to support a vote of no confidence, even if they were alarmed by what the government was proposing?

If there really are no effective checks and balances upon the exercise of royal prerogative, then what does that say about the UK's constitution? Are we really saying that it is such a shambles?

Anonymous said...

With regards to parliamentary sovereignty, isn't there an argument that the doctrine doesn't apply across the whole of the UK? Even Dicey hinted so.

In the Scottish constitutional tradition I believe it may be more limited. As I recall the issue derives from the Declaration of Arbroath and Claim of Right and was discussed in MacCormick v Lord Advocate but I don't believe it has been settled. Is this the case with the prerogative as well?

Another potential spanner is the Treaty of Union as the withdrawal from the EU may affect many areas of private law that is not for utility of the people.

Regardless, it is troubling if the Executive can empower itself so.

Proof of the pudding said...

According to the Attorney General, the government's position is, very simply:
"We say that despite multiple opportunities for Parliament to do so, the prerogative has not been supplanted or eroded so as to preclude its exercise in the present circumstances".

The manner in which the government's position was explained prompted the Lord Chief Justice to ask "is it the case that you are saying that the Crown has the prerogative power to withdraw from a treaty even if that affects the rights that are accrued under domestic law?". The reply (from James Eadie QC) to this was "Yes, is the short answer to that question".

So it is as I feared. Theresa May's view is that, in the absence of any express legislative provisions to the contrary, royal prerogative can be used to withdraw the UK from any treaty at any time, regardless of whether doing so undermines the principle of Parliamentary sovereignty.

I dread to think what the possible consequences could be for intellectual property laws in the UK (which, after all, rely upon multiple international treaties) if Theresa is correct.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':