Government misses main argument in Article 50 legal case

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Published in InFacts.org on 05 October 2016

In the forthcoming legal battle concerning the power to give notification to the EU of the UK’s intention to withdraw, the High Court will be invited to decide on an important point of principle. Does the separation of powers require that parliament controls the process of withdrawal, given its legislative implications? Or is the executive free to proceed according to its ancient powers to negotiate treaties?

There are arguments on both sides. On the one hand, notification is strictly speaking a matter of foreign policy and will not repeal the European Communities Act 1972. On the other hand, withdrawal is not an ordinary act of international law, because it has immediate and profound domestic legal effects. So the right answer is disputed. The court’s response and the theory that will inform it will provide a general framework for the separation of powers that will most likely have lasting constitutional significance.

The case is important politically too. MPs may consider that any authorisation to trigger withdrawal should come with restrictive conditions and especially a requirement that withdrawal will not entail loss of access to the single market.  Prime minister Theresa May will resist any such constraints. Judging from her speech at the Conservative conference, it seems she accepts that an immediate and therefore ‘hard’ Brexit could happen automatically at the end of the two year deadline.

Until recently, it was hard to comment on the case. The court had ordered that the parties’ various submissions should be confidential. This was an unusual decision, because the Civil Procedure Rules generally allow the disclosure of pleadings. The court was concerned that the case could inspire violent actions by some members of the public – and given the murder of Jo Cox MP such concern was by no means unreasonable. Thankfully, the court has now changed its mind and much material has become publicly available. The government’s preliminary legal response, called the ‘Grounds of Resistance’, is now available here. What does it tell us about its case?

The government’s central argument is that making the notification is an issue of international law, which is a matter for the ‘Royal Prerogative’. It says this is entirely separate from any domestic legislative effects. The repeal of the European Communities Act 1972 is a different task, which will in due course be undertaken by parliament. The government finally argues that matters of high politics in foreign affairs are not ‘justiciable’, in that they are inappropriate matters for judicial scrutiny.

Surprisingly, however, the government says nothing about the central pillar of the argument against it. This is the fact that once Article 50 is triggered, failure to reach agreement within two years leads to automatic withdrawal from the Union. If the notification of Article 50 cannot be unilaterally withdrawn  – something currently disputed among EU law experts – then notification equals withdrawal within two years. Notification, therefore, develops immediate legislative effects: after the two years, all the EU law rights and duties of UK citizens and UK institutions disappear.  

The government does not mention this point at all. Worse, it says something inaccurate. The submissions compare the process of withdrawal to the process of accession. They say that ‘the legal process of withdrawal from the EU will follow a similar pattern as accession to the EEC’ and that ‘negotiation will take place in exercise of the prerogative, and primary legislation will be passed in domestic law to give effect to their outcome as appropriate’ (at par. 35). This comparison is erroneous because it is incomplete. It describes only one of the two possibilities arising out of notification. Accession negotiations had no time limit. Withdrawal negotiations have. Unless the negotiation is concluded within two years or the deadline extended by unanimity, failure to agree entails automatic withdrawal – without any agreement. So unlike accession, withdrawal can be the direct and final outcome of the government’s notification of Article 50. Notification is not, thus, merely the beginning of a process of negotiation. If negotiation fails, withdrawal follows within two years without any deal at all.

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This point also means that the distinction between effects in international law and effects in domestic law is very weak. The government says that it is a matter of the standard ‘dualist’ approach to international treaties that we distinguish between the two. But this is irrelevant when it comes to EU law. EU rights and duties have direct effect. So both their introduction and their automatic repeal is in effect an act of legislation. The automatic withdrawal from the EU will thus have legislative effects. This is indeed confirmed by the government’s recent announcement that it intends to repeal the European Communities Act 1972 before withdrawal, with prospective effects. When withdrawal happens, the law of the UK will have been suitably prepared. So the sequence is clearly not the same as with accession.

It is very surprising that the government has not addressed these points. One can only speculate at this stage as to the reasons – assuming that the omission was intentional. Perhaps the government is trying to avoid a politically tricky reference to the European Court of Justice, which any acknowledgment of the ambiguity of Article 50 might invite. Perhaps it considers that it should best address these points in the more detailed arguments it will prepare for the hearing. We do not know. But surely, as the case moves on, the government will have to address these issues sooner rather than later. 

Pavlos Eleftheriadis is a Fellow in Law at Mansfield College, Oxford and a barrister at Francis Taylor Building.

Edited by Hugo Dixon