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How the Government Lost the Article 50 case

by Pavlos Eleftheriadis | 27.01.2017

The Supreme Court judgment in Gina Miller is not merely an affirmation of what the High Court said. The eight-member majority confirmed the earlier decision, but also took the opportunity to restate a fundamental principle, which had been left implicit by the lower court. The High Court said that the substantive rights arising out of EU law and the European Communities Act 1972, in employment, environment, consumer protection, competition or free movement, could not be abolished merely by the exercise of the royal prerogative. This was a standard interpretation of existing law, adapted for Article 50.  The Supreme Court accepted that this was correct, but added one additional reason.

The Court accepted that membership in the European Union is not merely an act of alliance with other states or an “international” decision, as some have suggested. It marks the transformation of a state’s legal order. Membership means that any law made in cooperation with those other states through the Commission, the Council of Ministers and the European Parliament – under the supervision of the European Court of Justice – becomes without any intervening step the law of the land. So the European Communities Act 1972 did not merely mark the incorporation of some existing or future identifiable substantive rights, for example in employment, equality, environmental or consumer law. It also marked the creation of a new law-making process.  

Withdrawal from the EU under Article 50 will abolish the substantive EU law rights already created since 1973. But it will also abolish the cooperative law-making process. This was a further reason to reject the government’s submissions. Such constitutionally significant change, the Supreme Court held, could not happen through exercising the Royal Prerogative. The Supreme Court’s majority says, at par.82, that their conclusion follows from “the ordinary application of basic concepts of constitutional law to the present case”.

It sounds mundane but it is not. It puts beyond doubt something that many have doubted: constitutional change cannot happen in the United Kingdom through practice, evolution or change of opinion, as some constitutional theorists believe. Constitutional change can only happen through the proper channels of democratic law making. This is not said anywhere explicitly in our unwritten constitution, but is now held by the Supreme Court to be true as a “basic concept” of the constitution. The Court’s decision is thus a restatement of the idea that the rules and principles of the constitution ought to have a systematic coherence.   

This idea is not entirely new. Some acts have been held to be so constitutionally important that “implied repeal” is not enough to set them aside. Parliament can only repeal them explicitly. The Supreme Court applied this doctrine to the question of Brexit, making the government’s defeat heavier than it had been at the High Court. Having now said that Brexit is a constitutional matter, it follows that an “implied repeal” of the European Communities Act 1972 could not be enough.

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Many of the critics of the majority judgment seem to endorse a different theory of the constitution, whose origins are Victorian. The theory is that because the constitution of the United Kingdom is a unique creation of its history, it does not need to follow the basic principles of coherence one finds elsewhere. No particular structure of the constitution is needed, other than the simplest idea of the sovereignty of parliament, however indeterminate. This used to be the dominant theory, famously articulated by A. V. Dicey.

Fortunately, the highest court of the United Kingdom has once again rejected these elaborate but clearly false constructions. The more accurate position, which returns the UK constitution to its origins in the Bill of Rights 1688 and its seventeenth century liberal and egalitarian roots, is that there is no need for an obscure and supposedly ancient theory of “sovereignty” to make the UK constitution work. The UK’s constitution is very much like all others: it has always relied on higher principles of constitutional justice for equal citizens, properly deliberated and defended in legal reasoning. This is why it changes only through the democratic legal process, by acts of parliament.  

Pavlos Eleftheriadis is a fellow of Mansfield College, Oxford and a barrister at Francis Taylor Building

Edited by Michael Prest

Categories: Post-Brexit