Résumé : Une des questions soulevée par le vote du 23 Juin dernier est de savoir si le Parlement britannique doit adopter une loi pour permettre au Gouvernement d’activer l’article 50 du TUE.  Trois différents recours, réunis en une seule affaire, ont été introduits en ce sens. Dans sa décision rendue le 3 Novembre, la Haute Cour retient que le droit européen est intégré d’une telle manière au droit britannique que seule une loi du Parlement pourrait renverser la situation. La Haute Cour, comme les requérants et le gouvernement présument de l’irrévocabilité de la lettre de notification d’activation de l’article 50 TUE. Pourtant une telle irrévocabilité fait débat dans la doctrine. Le Gouvernement a fait appel de cette décision qui a déclenché une campagne sans précédent de dénigrement de la justice dans les médias. La Cour suprême doit désormais trancher définitivement cette question. Il est peu probable dans ce contexte qu’elle saisisse la CJUE  pour clarifier l’interprétation de l’article 50 TUE.

Amongst the numerous thorny legal issues raised by the vote on 23 June of nearly 51.9% of the British people to leave the EU is whether an Act of Parliament is required before the Government can trigger the mechanism enshrined in Article 50 TEU by making the notification to the EU provided for in Article 50(2).

The argument runs as follows:

• (i) the European Communities Act 1972, which introduced what is now EU law into the various legal systems of the UK, will have to be repealed with effect from the date on which the country leaves the EU (“Brexit day”);
• (ii) pursuant to the European Union Referendum Act 2015, the result of the referendum is purely advisory and did not empower the Government to effect the Article 50 notification in the event that the people voted in favour of Brexit;
• (iii) once the notification is made, the procedure for withdrawal is irrevocably engaged; (iv) therefore, to ensure that Parliament is not presented with an unconstitutional fait accompli involving UK citizens being deprived of their EU rights, an Act of Parliament must be passed before the Article 50 procedure is triggered.

However, the Government has made it clear that it sees no reason whatever to involve Parliament before the notification is sent.   Whatever the legalities, there is considerable irony in this, since one of the main reasons why 17.4 million voters opted for Brexit was their concern that the EU does not respect the sovereignty of Parliament.

The Government relies on the royal prerogative, whereby certain matters are reserved to the Crown (in practice the Government), unless and until a statute (an Act of Parliament) provides otherwise.  The negotiation, conclusion and revocation of treaties fall within the royal prerogative, although those acts cannot affect the domestic law of the constituent parts of the United Kingdom without the enactment of a statute: the legal systems of the United Kingdom are dualist.  On the Government’s view, only once a new treaty has been signed does Parliament’s role come into play so that the latter treaty can take effect in UK law.

As to (ii), it was common ground between the parties that the referendum was purely advisory.  Indeed, there appears to be very widespread consensus on this point.

As to (iii), both parties proceeded on the basis that an Article 50 notification would be irrevocable.  The claimants appeared to regard this point as indispensable to their case. As to the Government, its plan is to take the UK out of the EU before the next general election in 2020 at all costs; so it has strong political reasons for accepting the claimants’ position on this point.

In any case, although a majority of MPs are hostile to Brexit, it is almost certain that all but a relatively small minority will refrain from opposing it as such.  This minority is expected to include the 54 MPs of the Scottish National Party, the 8 Liberal Democrat MPs, the 3 Social Democratic and Labour Party MPs (from Northern Ireland) and a few Labour MPs; but the total number of MPs is 650 !

Crucially, the electorate was only asked whether it was in favour of Brexit, not on what terms.   Accordingly, what a large number of MPs may be expected to do if a Bill is presented to Parliament is to seek to impose conditions for the UK’s withdrawal from the EU, with a view to avoiding a “hard Brexit” (i.e. the departure of the UK from the EU on terms which would be very bad for the British economy, or even without any Withdrawal Agreement under Article 50).  This would necessarily involve the Government making concessions on immigration from the EU so as to ensure that the UK is granted full access to the EU for its goods and services.

The Judgment of the High Court of  England and Wales

Three separate actions were brought for a declaration that an Act of Parliament was required before the Article 50 notification could be sent.  The three cases have been joined.

Like any action in public law, the case was heard by the High Court of England and Wales, the court of first instance for all cases of any significance.  However, since this is the most important constitutional case to come before the English courts for many years, the composition of the court was quite exceptional, namely: the Lord Chief Justice, the Master of the Rolls (president of the Court of Appeal) and another member of the Court of Appeal.  The first two of these judges are amongst the most senior members of the judiciary of England and Wales.

On its judgment of 3 November, the High Court did not call into question the view taken by both parties that an Article 50 notification would be irrevocable.

On an analysis of the key provisions of the 1972 Act, the Court held that “the clear and necessary implication from those provisions … is that Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers” (paragraph 94).  Thus Parliament intended EU law rights to be incorporated into UK law in such a way that this could only undone by statute.

The Government’s Appeal

Immediately after the High Court delivered its decision, the Government announced that it would appeal directly to the Supreme Court. On 8 November, the Supreme Court gave permission for this appeal and announced that all eleven of its members would hear the case, which is unprecedented.

The hearing before the Supreme Court has been fixed for early December, and it is anticipated that the judgment of the UK’s highest court will be delivered the following month.  Should the Supreme Court dismiss the appeal and an Act of Parliament is required, then it is not certain that the Prime Minister will be able to meet her undertaking to send the Article 50 notification before the end of March.

Is an Article 50 Notification Really Irrevocable? 

As already mentioned, the High Court proceeded on the basis that an Article 50 notification would be irrevocable.  But is this correct?

A number of eminent lawyers, including Jean-Claude Piris and Paul Craig have argued cogently that that reading is not correct and that the Member State concerned can revoke its Article 50 notification unilaterally.   This view is based inter alia on the idea that, if the British people has a change of heart, the UK cannot be forced out of the EU merely because its Government has notified the EU of its intention to leave.  Having said that, on the basis of international law, it has also been argued that such a step cannot be taken unilaterally.

As my colleague George Peretz QC has pointed out, the interpretation of Article 50 is a question of EU law, which the Supreme Court is required to refer pursuant to Article 267 TFEU; but in this highly charged political atmosphere to involve the Court of Justice in these proceedings would cause an outcry. Quite apart from that, a preliminary reference would take some time and both the Government and the EU are keen for the Article 50 process to begin as soon as possible.   Consequently, it seems unlikely that the Supreme Court would wish to make a reference in this case.

Having said that, as George Peretz has also pointed out , the Government’s approach is problematic even if an Article 50 notification is revocable.  On the Government’s view, the “hardest” possible Brexit (i.e. if the UK were to leave the EU after the expiry of the two-year period without any Withdrawal Agreement being concluded), would require no Act of Parliament at all, since EU law would cease to apply automatically in that event and no new treaty would be concluded at that stage at least.  In other words, the 1972 Act would become largely inoperative (since most citizens’ rights flowing from EU would simply be lost) without being formally repealed.

The Assault on the Judiciary by the Press

Whatever the merits of the judgment of the High Court (and they are considerable), the coverage of the judgment by sections of the right-wing press was nothing short of egregious.  In particular, the headline in the Daily Mail described the three judges as “enemies of the people” on the basis that they had “declared war on democracy by defying 17.4m Brexit voters”.  Quite apart from anything else, that accusation is wholly unfounded for the reasons already mentioned in the introduction to this post.  However, that is quite beside the point.

But that is not all.  The article went on to point out that: the Lord Chief Justice is “a committed Europhile”; the Master of the Rolls is openly gay; and the third judge had made considerable sums of money appearing in the courts on behalf of the Blair Government.

Regrettably, in the last twenty years or so, it has become increasingly common for politicians and journalists to criticise judgments which do not suit them.  However, on this occasion the attacks by the press have been exceptionally virulent?

The Chairman of the Bar, Chantal-Aimée Dorries, condemned these attacks on the independence of the judiciary, as did a handful of politicians.  As a result, Liz Truss MP, the Minister of Justice, made a declaration some two days after the judgment simply stressing the importance of the independence of the judiciary – but without condemning the press attacks in this case.   Many observers regarded this statement as wholly inadequate. Some days later, the Prime Minister declared that our democracy is underpinned by both the independence of the judiciary and the freedom of the press; but she appeared to intimate that in this instance the later prevailed, especially as the judges had got it wrong.

In the circumstances, this is deeply lamentable.  After all, a pro-EU MP was assassinated during the referendum campaign, a number of immigrants have been murdered since then and death threats are rife.  Violent attacks on judges, lawyers and their clients cannot be ruled out.  Lego’s decision to put an immediate end to its policy of giving away free toys with copies of the Daily Mail in response to this article  is most welcome – but small comfort !!!

Peter Oliver, barrister Monckton Chambers, professeur visiteur Université Libre de Bruxelles

Voir la contribution précédente de Peter Oliver: The Interface between the Withdrawal Agreement under Article 50(2) and the UK’s Future Relationship with the EU: the Content and the Timing

Voir l’ensemble des contributions sur le thème du Brexit