Caribbean Trade Law and Development

Tag: Article 50

  • UK Supreme Court to deliver ruling in Article 50 Brexit Appeal next Tuesday

    UK Supreme Court to deliver ruling in Article 50 Brexit Appeal next Tuesday

    Alicia Nicholls

    Mark the date Tuesday, January 24th at 9:30 am on your calendars! That is the date on which the United Kingdom’s highest court will deliver its highly anticipated judgment in the appellate case of R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant), known more familiarly as the Article 50 Brexit Appeal. The Supreme Court made this announcement via its official Twitter account today, a day after UK Prime Minister Theresa May laid out her 12-point Brexit strategy.

    This case is one of the most consequential constitutional cases in recent UK history. The legal question before the Supreme Court is whether the Government has the power to give notice pursuant to Article 50 of the Treaty on European Union (Lisbon Treaty) of the UK’s intention to withdraw from the EU, without an authorising Act of Parliament. Or put more simply, is it the executive or the legislature which has the power to decide whether Article 50 is to be triggered. While some Brexiteers have seen the case as an attempt to delay or derail the “inevitable” (i.e. the UK’s leaving of the EU), the Court is not being asked to consider the more political question of whether the UK should leave the EU.

    The genesis of this case was a legal challenge brought by investment fund manager Gina Miller and hairdresser, Deir Dos Santos in the High Court against Prime Minister May’s assertion that the Government could use its prerogative powers to make the Article 50 notification without first seeking parliamentary approval. Ms Miller argued that due to the principle of parliamentary sovereignty, a crux of UK constitutional law, only the parliament could make such a determination. Relying primarily on the principle of parliamentary sovereignty, the High Court in its October ruling in R (Miller) v Secretary of State for Exiting the European Union held that the Government did not have the power under the Royal Prerogative to make the Article 50 notification. The Government swiftly appealed.

    In a rare sitting of all eleven justices on the bench, the UK Supreme Court held a four-day (December 4-8) hearing to consider the Government’s appeal against the High Court ruling. The Court’s ruling will be final.

    In her major speech on Tuesday before the announcement was made, Mrs. May stuck to her end of March deadline for making the Article 50 notification. However, the feasibility of that deadline will depend on whether the Supreme Court upholds or overturns the High Court’s ruling. If the Supreme Court dismisses the Government’s appeal, a bill would have to be laid and debated in Parliament. Depending on the length and robustness of debate, it may delay the March 2017 deadline Mrs May has insisted upon. The Government is likely to draft a bill which is as simple as possible to reduce the length of time for debate or for amendments.

    Alicia Nicholls, B.Sc., M.Sc., LL.B., is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

  • Article 50 UK Supreme Court case starts; Crown begins its submissions

    Article 50 UK Supreme Court case starts; Crown begins its submissions

    Photo source: Pixabay

    Alicia Nicholls

    One of the most consequential and politically-sensitive constitutional law cases in United Kingdom legal history commenced on Monday before the Kingdom’s highest court. A panel comprising all eleven Supreme Court justices heard opening submissions from Attorney-General, Jeremy Wright QC and veteran government lawyer, James Eadie QC, on behalf of the Crown. Reiterating the arguments the Crown had made during the High Court case, both counsel for the Crown argued that the Government does not need to consult Parliament first in order to make its notification of withdrawal from the European Union (EU) under Article 50 of the Treaty of Lisbon as such power lies within the Crown’s prerogative powers – powers belonging to the sovereign (but mostly exercised by the executive branch) which may be exercised without requiring parliamentary consent.

    Background

    In a referendum held on June 23, 2016 the British people by a 51.9% to 48.1% majority voted in favour of the UK withdrawing from the EU. This led to the resignation of then Prime Minister, David Cameron, and his succession by Theresa May who despite not being part of the “Leave” campaign during the run-up to the vote has since vowed to uphold the will of the British majority with her famous words “Brexit means Brexit”. As part of this pledge, Prime Minister May has argued that the Government can by-pass a parliamentary vote on whether to trigger Article 50 due to the Royal Prerogative.

    The Government’s argument was challenged by Mrs Gina Miller, a Guyanese-born British investment fund manager, and Deir Dos Santos, a Spanish-born hairdresser, who were the lead claimants in a case heard by the UK High Court on the matter. In its ruling  R (Miller) v Secretary of State for Exiting the European Union the High Court sided with Mrs. Miller, holding that Article 50 could only be triggered by parliamentary action. The Crown promptly appealed the November 3rd ruling and it is this appeal which is currently before the Supreme Court.

    Opening statements by Attorney General

    In his opening submissions on Monday, counsel for the Crown, Mr. Wright reiterated that the majority of those who voted in the referendum supported the UK leaving the EU and that Article 50 provides the specific legal mechanism for doing so. He said the divisional court treated this fact as “legally irrelevant” and erred in concluding that it is only by parliamentary action that Article 50 can be invoked. He further argued that “use of the prerogative in these circumstances would not only be lawful, but fully supported by our constitutional settlement, in line with parliamentary sovereignty and in accordance with legitimate public expectations”.

    He went on to explain the importance of the foreign affairs prerogative, which includes the power to make and unmake treaties, as “not an ancient relic”, but a “contemporary necessity”.  Acknowledging the UK constitutional law tenet of parliamentary sovereignty, Mr. Wright noted that where parliament has chosen to limit the prerogative, it has done so “sparingly” and “explicitly conscious” of the importance of prerogative powers to government business. A portion of Mr. Wright’s opening submissions may be watched on the Guardian’s site here.

    Mr. Wright’s submissions were followed by government lawyer, James Eadie QC, who was asked several questions by the judges during the course of his submissions.

    What’s at stake?

    According to BBC reporting, the proceedings are expected to last four days and a decision is expected to be rendered in January. It should be reiterated that the matter being decided upon by the Supreme Court is not whether Brexit should take place, but whether the Crown in exercise of the Royal prerogative has the power to trigger Article 50, without first consulting Parliament. As the UK’s highest court, the court’s decision is final.

    The stakes are high for the government as not only would the need for parliamentary approval endanger the deadline which Prime Minister May has set for the start of Brexit negotiations, but a possible constitutional crisis of sorts may ensue in the case where  MPs vote against the triggering of Article 50. The governments of Scotland and Wales have been given permission to “intervene” into the case. In Scotland, some 62% of voters had supported remaining in the EU. It should be noted as well that once Article 50 is triggered, it cannot be reversed.

    Symptomatic of the public interest and polarisation which this case has generated, various news reports have indicated that there were long queues waiting to get into the court house, as well as protesters on both sides on the streets.

    Court resumes tomorrow at 10:15 am (UK time). Please feel free to tune in to any of your favourite media houses for live coverage.

    Alicia Nicholls, B.Sc., M.Sc., LL.B., is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

  • Brexit High Court Ruling: What does it Mean?

    Brexit High Court Ruling: What does it Mean?

    Alicia Nicholls

    In a landmark decision handed down today, the London-based UK High Court in R (Miller) v Secretary of State for Exiting the EU, has held that the Theresa May-led UK Government cannot begin the formal process of leaving the European Union (EU)  without first seeking parliamentary approval.

    As a bit of context, on June 23, 2016 52% of the British electorate voted for the UK to withdraw from the EU. However, for Brexit (British exit from the EU) to formally begin, notification of such intention by the UK must be made pursuant to Article 50 of the Treaty on European Union (Lisbon Treaty). This came into effect in 2009 and  gives an EU member state the express right to withdraw from the 28-member bloc in accordance with its own constitutional requirements and with the provisions contained in said Article. A useful synopsis of the Brexit process can be found here.

    EU leaders have stated that they do not intend to begin negotiations with the UK until Article 50 is triggered. This probably explains why British Prime Minister Theresa May has indicated that she wishes to make the Article 50 notification by March 2017.

    This latest chapter in the Brexit saga is an unexpected bump in the road for the conservative government. While Mrs.May had been part of the “Remain” camp while serving as Home Secretary in the cabinet of then Prime Minister David Cameron, she has since upon becoming Prime Minister stated in pellucid language that she intends to respect the will of the British people. She has famously stated that  “Brexit means Brexit”.

    The Issue

    Simply stated, the central issue before the High Court was whether under UK constitutional law, the Crown (as embodied by the executive) has prerogative power to make a notification pursuant to Article 50. Prerogative powers, also known as the Royal Prerogative, are residual legal powers which are vested in the Sovereign but are exercised primarily by the executive. One of such prerogative powers is the power to engage in international relations, for example, through the conclusion of treaties.

    Arguments

    The crux of the Government’s argument was that the Crown under its prerogative powers could make the Article 50 notification without Parliamentary approval and that this had to have been the intention of Parliament under the European Communities Act of 1972 (ECA 1972). The Government argued that neither the ECA nor any other primary legislation has removed the Crown’s prerogative power to withdraw from the Treaty on European Union (Lisbon Treaty) or any other treaties. The Secretary of State, David Davis, also argued that Parliament would have its say on the withdrawal agreement in any case.

    However, not everyone was happy with Mrs. May’s stated intention to by-pass Parliament and effectively take away legal rights accruing to the  British people under the EU treaties. A legal challenge against the Government’s policy position was led by investment fund manager, Mrs Gina Miller, and supported by London-based Spanish hairdresser, Deir Dos Santos, and other interested parties. They referred to the fundamental principle in UK constitutional law that rights under the law of the UK cannot be varied by the Crown in exercise of its prerogative powers unless Parliament has expressly or impliedly given the Crown this right. They, therefore, argued that Parliament has not given such authority (whether expressly or impliedly) in neither the ECA 1972 nor in any subsequent Acts.

    The Judgment

    The 30-plus page judgment was delivered by Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales. The court relied primarily on law from England and Wales but also from other Scottish and Welsh law. Referring to the common ground between the claimants, the court noted that they both acknowledged that a UK withdrawal from the EU would change domestic law in each of the UK’s jurisdictions and that once notice pursuant to Article 50 is given, it is irreversible.

    Going back to first principles and with reference to decided cases, the Court delineated several fundamental and long settled tenets of UK constitutional law. Importantly, they reiterated that sovereignty of the UK parliament was a cornerstone of UK constitutional law. The Court noted that while the ECA 1972 was an exception to the supremacy of primary legislation (Acts of Parliament), it is Parliament which made this decision and only Parliament has the power to repeal this Act if it so chooses.

    Additionally, the Court went on to reiterate that primary legislation cannot be displaced by the Crown in the exercise of prerogative powers. In other words, the Crown cannot change domestic law by exercising its prerogative powers, nor can it confer or deprive individuals of rights without Parliamentary action. Recall that the ECA 1972 gives effect to EU law in domestic law, including rights.

    In summary, the two main reasons presented by the Court for its ruling were that:

    (1) there is nothing in the text of the ECA 1972 to support that the Crown can exercise prerogative powers in such matters. Indeed, the Court methodically laid out several instances in which Parliament intended that EU law be introduced into domestic law in such a way that it could not be undone by the Crown in the exercise of its prerogative powers,

    (2) it is contrary to the constitutional principles of parliamentary sovereignty and of the inability of the Crown to change domestic law through the exercise of prerogative powers

    In summary, the Court ruled in favour of the claimants and held that the Crown had no prerogative power to give notice of withdrawal under Article 50.

    Reactions to the Ruling

    As one would expect, the ruling has brought mixed reactions. For Brexiteers and for Mrs May, the disappointment was palpable. They have viewed this defeat as undermining the will of the people. For their part, EU envoys do not appear to welcome the delay either.

    For the Pro-EU supporters, the ruling is a small victory. After all, it is one more hurdle in the road towards Article 50. Ms. Miller in her speech after the ruling reiterated that the case was about “process and not politics” and urged the Government not to appeal the ruling. First Minister of Scotland, Nicola Sturgeon welcomed the ruling which she termed “hugely significant”, according to media reports.

    What does this ruling mean?

    So what do we know? Firstly, we know from the ruling that the Crown has no prerogative power to trigger Article 50 and that parliamentary approval is needed. But what form of approval should this take? Should there be just a yes or no vote or should there be a fuller debate on the scope of the negotiations as some are suggesting?   The ruling also appears to confirm that the referendum was merely advisory and not mandatory.

    Does this ruling stop Brexit? No. The Court went to great pains to explain that what it was being called upon to decide  was a question of law and not the merits or demerits of a UK withdrawal from the EU. The court has not, nor was it its role to, decide on the political issue of whether there should be a Brexit.

    But lest, we think this ruling has settled the matter of who is responsible for triggering Article 50, it should be noted that the Government has been granted leave to appeal to the UK Supreme Court which will hear the matter in December. The Supreme Court’s ruling is final. Therefore, it could either uphold the ruling of the lower court or it could overturn the lower court’s ruling and hold in favour of the Government.

    Assuming that the Supreme Court upholds the High Court’s ruling and the question goes to Parliament for a vote, there are two possible scenarios. If the members of Parliament and the Peers decide to support the wishes of the British electorate and support making the notification, then the Government is free to make its Article 50 notification. However, if the Parliament votes against the triggering of Article 50, then the situation is less clear. My own view is that if the referendum is merely advisory, then would not Parliament have the final say? It will be interesting to see what happens in such a case. But will it be a simple yes or no vote or will Parliament seek to delineate the parameters under which the negotiations take place?

    Here is another thing. It puts a spanner in the works of the quick Brexit Mrs. May was envisioning and the feasibility of the posited March 2017 deadline. There is no telling how long it will take for the question to be laid before parliament and for both houses of Parliament to debate and vote on the issue. What is certain though is that there will be more uncertainty. Some have speculated that Mrs. May may be forced to call an early general election.

    But there is one bit of good news! On the back of this news, the value of UK Pound Sterling rose to GBP to 1.25 USD, still low but higher than the slump it has endured for the past few weeks when it appeared the Government was going for a “hard” Brexit. The rationale is that Parliamentary involvement would lead to a “soft” Brexit (where the UK remains in the single market and accepts the free movement of persons) as opposed to a “hard” Brexit which Mrs. May appeared to be supporting by her statements on immigration.

    Suffice it to say, we have a long way to go before this issue of triggering Article 50 is resolved. And that is just the beginning of the Brexit process! It will be interesting to see whether the UK Government will rely on the same arguments it made in this case or whether it will change its pleadings when it makes its submissions before the Supreme Court in December. Interesting times are ahead!

    The full judgment may be accessed here.

    Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.