Article 50 of the Treaty of the European Union (TEU) sets out the process by which an EU Member State may withdraw from the European Union.  It provides that a Member State may decide to withdraw “in accordance with its own constitutional requirements” and that a Member State which decides to withdraw must notify the European Council of its intention (an Article 50 notice).  Unless agreed otherwise, service of an Article 50 notice triggers a two year negotiating period, at the end of which the relevant Member State leaves the EU. As Philip Wood observed, at that point “the trap door opens” and the UK would drop out of the EU, whether or not a withdrawal agreement is in place.

Shortly after the UK referendum on 23 June 2016, a number of separate claims were commenced in the English High Court concerning legal interpretation of Article 50.  These proceedings, commenced variously by a hairdresser, a fund manager and some expats, have been joined and heard together as Santos & Miller v Secretary of State for Exiting the European Union (the Article 50 Proceedings).  The three-day hearing took place in the High Court in London on 13 October, 17 October and 18 October 2016.  It is anticipated that the judgment will be handed down in two to three weeks.

On the first day of the hearing, the Claimants set out their case, submitting that, as a matter of English law, it is not open to the UK Government to serve an Article 50 notice without an Act of Parliament first authorising such a notice. 

On the second and third days of the hearing, the UK Government presented its submissions, arguing that it would be in accordance with the UK’s constitutional requirements for any decision to withdraw from the EU to be taken under the prerogative power of the Crown alone. 

The Claimants responded to the Government’s submissions on the third day of the hearing, stressing the limits on the use of prerogative power.  They submitted that a core limitation concerns the removal of statutory rights, such as those enjoyed by UK citizens through membership of the EU and recognised in domestic law.  The Claimants argued these rights cannot be removed by prerogative power alone.

The Article 50 Proceedings take place against the backdrop of Prime Minister May stating, on 2 October 2016, that her Government will serve the Article 50 notice by the end of March 2017. The EU has indicated that it will not begin negotiations until that notice has been served.

In our briefing we detail the arguments made during the Article 50 Proceedings. We also provide a brief update on the current Parliamentary debate on this issue and the wider impact of the legal challenge.

What is the Litigation Trying to Achieve?

The lead claimant (Ms Miller) made the application for permission to bring judicial review proceedings and the fundamental question to be answered by the court is: can the Secretary of State for Exiting the European Union, on behalf of the Government, lawfully use prerogative powers to serve a notification under Article 50 of the TEU of the UK’s intention to withdraw from the EU? 

The lead claimant is seeking to prevent the Government from serving an Article 50 notice without Parliamentary involvement.  Specifically she seeks a declaration that “it would be unlawful for the defendant or Prime Minister … to issue a notification under Article 50 … without an Act of Parliament authorising such notification”. 

The UK Government’s position is that it would be in accordance with the UK’s constitutional requirements for any decision to withdraw from the EU to be taken under the prerogative power of the Crown alone.  Mr Cameron himself (when Prime Minister) appeared to take this view and Mrs May’s Government has maintained this line.

Prerogative power is sometimes employed in foreign affairs and is the basis on which the UK enters into treaties with other states.  However, under English law prerogative powers cannot validly be exercised in a space occupied by statute, or to frustrate the will of Parliament as expressed in a statute. 

Whilst the arguments are finely balanced, there is a prospect that the English court may conclude that it is for Parliament, not the executive, to decide to serve the Article 50 notice.

The Claimants’ Arguments

In summary, the Claimants’ submitted case is as follows:

  1. the constitutional arrangements of the UK are founded on the common law principle that the executive is constrained by legal limits on the exercise of its prerogative powers (Bill of Rights 1689, The Case of Proclamations 1610) and Parliamentary sovereignty is the “bedrock of the constitution” (as per Lord Bingham in R (Jackson) v Attorney General [2005] UKHL 56);
  2. there is no statutory basis under which the Government can invoke Article 50, meaning it must rely on prerogative power;
  3. the European Communities Act 1972 (the 1972 Act), by which EU law is made applicable or given effect in the UK, confers rights on British citizens by virtue of EU membership – the 1972 Act is “one of the most important statutes” and unique in that it has a direct impact on domestic law such that notification under Article 50(2) is  not just an international, but also a domestic action;
  4. notification under Article 50 will frustrate these rights. This includes rights which are not in Parliament’s unilateral gift to re-enact (e.g. free movement within the EU) and rights which cannot be re-enacted by their very nature (e.g. the right to vote and stand in European Parliament elections);
  5. a notification under Article 50 is irrevocable, as it cannot be withdrawn once sent, and must be made in accordance with the UK’s constitutional requirements;
  6. since the consequence of an Article 50 notification would be that the EU Treaties would cease to apply to the UK on the earlier of a withdrawal agreement being signed or a two-year deadline, and therefore the 1972 Act will be rendered null and void, it follows that such a decision is beyond the legal limits of prerogative power and consequently such action must be approved by Parliament;
  7. Lord Pannick QC for Ms Miller, argued that Article 50(1) and Article 50(2) are “intimately linked” and the case was focussed on the notification, because it is by reason of notification that treaties cease to apply after two years at the latest as set out in Article 50(3); and
  8. Dominic Chambers QC for Dos Santos, submitted that the Government appeared to argue that it was an “amalgam of events” that makes up the decision for the UK to withdraw from the EU as there does not appear to be a defining event that crystallises this decision.

The Government’s Arguments

In summary, the Government’s submitted case is as follows:

  1. Parliament has, by implication, left the power to trigger Article 50 in the hands of the executive, notwithstanding that the exercise of the power may impact upon current statutory rights;
  2. there is no broader principle (as maintained by Lord Pannick QC) that the executive may never act, including in the field of foreign affairs, so as to cause interference with domestic legal rights;
  3. it is the usual position that the executive can make decisions on the international stage and Parliament can then give effect to decisions in the domestic arena. This means that Parliament will be “intimately involved in the process” of the UK’s withdrawal from the EU – as the ‘Great Repeal Act’ will require Parliamentary approval;
  4. there are a number of features of the Article 50 Proceedings “which tend further against existing statutory rights operating as a restriction upon the prerogative to withdraw” from EU treaties;
  5. the Article 50 notification merely starts a process and does not itself have any immediate effect in domestic law – there is a negotiation to undertake (involving Parliament) after “the starting gun is fired” – “the Article 50 notification is the formal invitation, in effect, to begin the dance”, during which “intermediate positions will be taken”;
  6. James Eadie QC sought to demonstrate to the court that there are only a limited number of rights which may be “hollowed out” by the withdrawal from the EU, assuming that Parliament were not to intervene during the negotiation period.  These “hollowed out” rights derive either from EU legislation which is automatically effective in Member States or by virtue of the UK being a member of the EU (eg the right to stand as an MEP); and
  7. Mr Eadie QC also submitted that the court should take a pragmatic approach.  He suggested that the court should not proceed into a “delicate constitutional area” on the basis of “unrealistic assumptions” about what could happen to such rights, noting there was no realistic basis to assert that these rights will “disappear” on withdrawal from the EU.

Further Argument

The Government submitted that the court should start with the assumption that Parliament “knows full well that the prerogative power exists” and then ask whether Parliament evinced an intention expressly or by necessary implication to abrogate the power.  Lord Pannick QC responded “that puts the proposition 180-degrees the wrong way round”.  He stated that there is high authority for the proposition that where Parliament has created statutory rights, they cannot be removed by executive action, whether under the prerogative or any other executive action, without Parliamentary authority.

Article 50 Notice – Is it Irrevocable?

During the course of the first day of the hearing, the court appeared to recognise that the assertion that an Article 50 notification is irrevocable is “central” to the Claimants’ case.  The court did not appear minded to accept the invitation to assume that such a notice is a “one-way trigger” that “can’t be stopped”. The court indicated that it would be “absolutely essential” for it to decide the matter rather than to proceed on an assumption. 

The Government emphasised in its submissions on the second day of the hearing that it was not arguing that an Article 50 notice can be revoked.  It also accepted that a conditional Article 50 notice cannot be served. The Government invited the court to “proceed in this case on the basis that a notification under Article 50(2) is irrevocable”.

The Government’s position is complicated because, if it is accepted that the Article 50 notice is irrevocable, it is difficult to argue that Parliament will be able to have a substantive say on the form of any negotiated agreement.  Parliament will be faced with a choice, on one hand, of voting to approve the draft agreement (as negotiated by the Government) or, on the other, voting against such a draft agreement, with the consequence that the ‘trap door’ would open and the  UK would drop out of the EU at the end of the two year period without an agreement.

There remains uncertainty as to whether the court will seek to determine this issue and/or refer it to the Court of Justice of the EU (CJEU) as it is a question of EU law (see further below).

What Does This Mean for the UK Government?

Whatever the outcome at first instance, the decision is likely to be subject to an expedited appeal to the Supreme Court which, as noted above, will take place before the end of 2016.  If the English courts determine that, as a matter of law, Parliament does need to provide statutory approval of service of the Article 50 notice, this is likely to delay the UK’s exit from the EU, perhaps significantly.  Mrs May’s plan to serve the notice by the end of March 2017 is unlikely to be achievable. Moreover, such a court ruling may have an impact on the Government’s plans to include the ‘Great Repeal Act’ in the Queen’s Speech (the Government’s Parliamentary programme) next Spring.

Obtaining Parliamentary approval would necessarily involve a debate and votes in both Houses. One can envisage a situation whereby MPs and members of the House of Lords may seek to influence the terms of any proposed notice. 

Another possibility is that the High Court or the Supreme Court may decide that it needs to refer the question of whether the Article 50 notice is revocable to CJEU on the basis that this is a question of EU law.  This would delay the English courts’ judgment, almost certainly beyond March 2017.  Any interpretation of Article 50, whether by domestic courts or the CJEU, could alter the practical effects of the political decision to serve the notice.

If, on the other hand, the English courts decide that no Parliamentary authority is required, and assuming such a decision was given before March 2017, this would allow the Government to serve the Article 50 notice in accordance with the timetable set out by the Prime Minister.

There is also another possible – though perhaps unlikely – consequence of a successful legal challenge. Parliament, with a majority (on paper) of pro-remain MPs, a slim Government majority and an independent minded House of Lords may not approve service of the Article 50 notice or may conditionally approve service, subject to certain negotiating positions being adopted by the Government.  Whether this is a likely scenario is largely a political assessment, but is another uncertain factor in this analysis. 

Wider Parliamentary Scrutiny

On the return of Parliament following the summer recess, the Labour party tabled 170 questions about leaving the EU.  During a debate, Keir Starmer MP, Shadow Secretary for Exiting the European Union, stated that “the more significant the decision in question and the more serious the possible consequences, the greater the need for meaningful parliamentary scrutiny”. The UK Government has conceded that Parliament would have “full and transparent” scrutiny over the Government’s strategy for leaving the EU before the Article 50 notice is sent.  However, the Government did not state that Parliament would be given a formal vote on Article 50.

Earlier this year, on 20 September, the House of Lords Select Committee on the Constitution produced a report on the invoking of Article 50 (link).  The Committee concluded that it “would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit Parliamentary approval – particularly one with such significant long-term consequences. The Government should not trigger Article 50 without consulting Parliament”.

Further, the same Select Committee produced a report in October 2010 on referenda in the UK, and the Government provided a response (link).  The Government’s response included recognition that “under the UK’s constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result”.

On 20 October 2016, the chair of the newly-formed Select Committee on Exiting the European Union, Hilary Benn MP stated that he was “very clear that Parliament will want to have a say in scrutinising the negotiation plan … as well as taking the final decision” on the negotiated position reached with the EU.   

Why Does All of This Matter?

Santos & Miller is a case of fundamental constitutional significance.  The arguments and resulting judgments will be pored over by constitutional scholars and lawyers for decades to come.  More importantly for the UK (and the EU), the ultimate judicial decision could have a profound impact on Governmental policy and the UK’s position in relation to Brexit. 

If the court rules that the matter must be put to a Parliamentary vote, it is not inconceivable that a UK Parliament could vote against an Article 50 notice.  Further, even if such a vote is passed, the involvement of Parliament will inevitably affect the timing of the UK’s withdrawal from the EU because the exit process would be unlikely to begin at the end of March 2017.

This post comes to us from Allen & Overy. It has been authored by Karen Birch, Sarah Garvey, Thomas Cusworth, Andrew Denny and Sophie Nettleton.