Legal Wrangling Engulfs Brexit

Luke Conner
General Director,
Conner & Company LLC

In my last column for Moscow expat Life, I reacted to the aftermath of the Brexit referendum and highlighted my concerns that there was no clear plan for Brexit and that a soft-Brexit might end up irritating those on both sides of the political spectrum, rather than having a unifying effect on Britain’s voters. As it happened, and presumably based on similar reasoning, Theresa May’s government has seemingly since opted to form a policy centred on an altogether harder form of Brexit. On 3 November, 2016, the High Court of England and Wales threw a proverbial spanner in the works, by ruling that the government had no right to invoke Article 50 without obtaining prior parliamentary approval. This in turn, led to sections of the press referring to the judges concerned as “enemies of the people”, resulting in a fair amount of anger and confusion amongst sections of the voting public.

To better understand the reasoning behind this judgment, we should take a quick look at the background. Theresa May’s government always contended that invoking Article 50 (of the Treaty of European Union) was a foreign policy matter and therefore under the government’s sole purview pursuant to an ancient constitutional legal convention known as the royal prerogative. Gina Miller, a fund manager from London, and Deir Tozetti Dos Santos, a Spanish-born hair-stylist living in London, begged to differ and brought a claim challenging the catchily named, Secretary of State for Exiting the European Union. With a powerful legal team assisting them, (which was ostensibly financed by Mrs. Miller and funds raised through crowd-sourcing), Miller and Santos argued that, as a matter of law, invoking Article 50 should only be initiated by the government subject to the prior approval of Parliament because the rights afforded to British citizens under the European Communities Act 1972 (which ratified the treaty) were also provided by Parliament domestically.

In summary (and please note this is necessarily concise), the court, presided over by Lord Thomas, the Lord Chief Justice, Sir Terence Etherton, the Master of the Rolls, and Lord Justice Sales, agreed with Mrs. Miller and Mr. Santos, for the following reasons:

1. Parliament (essentially the two Houses ((Commons and Lords)) plus Royal Assent) is sovereign;

2. ‘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’;

3. Parliament would have legislated in vain (when originally joining what is now the EU) had the Crown been able to withdraw the UK from the EU without further legislation, something which could never have been intended; and

4. the legislation constituting the referendum process was only ever passed by Parliament on the basis that the referendum was to have advisory effect, which conclusion reflects “the basic constitutional principles” already applicable in the UK.

Having read the judgment in full, I can assure the reader that it was distinctly apolitical. The judges stressed that “nothing we say has any bearing on the merits or demerits….. of withdrawal from the EU ….nor does it have any bearing on government policy.” They also strongly emphasised the “pure legal point” which was put before them to decide. It is abundantly clear from this judgment, how little respect the judges had for the legal (not political) reasoning provided by the Secretary of State. They demolished each of his arguments, one-by-one. With hindsight, it was surprising to hear Theresa May claim afterwards, that the government’s case was sound and they would appeal. Based on what I read, she should stop wasting tax payers’ hard earned money on legal fees! The Supreme Court will surely uphold this verdict in early December!