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Cherry v AG for Scotland, Part I: Is a No-Deal Brexit Necessarily Implied?

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About The Author

Michael Lane (Guest Contributor)

Michael is a current PhD student at Birmingham City University, undertaking research that focuses on the UK’s interaction with the United Nations’ Universal Periodic Review. He is also a Visiting Lecturer in Constitutional and Administrative Law, and a writer for his blog, where he writes articles concerning constitutional law, international law, and human rights. When he's not researching or teaching, he spends much of his time with friends and family, gaming, or indulging in music.

This article was originally written for Michael Lane's blog, where you can find more articles from Michael on constitutional and international law, as well as Brexit. Part II of this series can be found here.

In my opinion, there has been no contravention of the rule of law. Parliament is the master of its own proceedings. It is for parliament to decide when it sits.

Lord Doherty

This piece is the first part of an article relating to Cherry & Others v The Advocate General for Scotland, the recent judicial review case concerning the lawfulness of the Prime Minister’s decision to prorogue (or ‘shut down’) Parliament from the 9th September to the 14th October 2019. The decision of the Supreme Court on the same matter is due to be announced tomorrow (October 24th) at 10.30 am. Nevertheless, the three stages to this case, in raising a variety of significant and meaningful questions of constitutional law, deserve some careful reflection.

This first piece will give consideration to the case’s first hearing in the Outer House of Scottish Court of Session decision made on the 4th September 2019. In particular, there is a brief discussion of the Court’s approach to justiciability, and why one of the arguments forwarded by the petitioners was so easily dismissible.

Justiciability 

On the 4th September, Lord Doherty delivered his judgement after hearing the petitioners case at first instance. Primarily, this case failed on the basis that the issues concerned were non-justiciable. Though the next part of this article will discuss the matter of justiciability further (and why the Inner House decided justiciability was satisfied), it is nevertheless worth briefly discussing some of Lord Doherty’s comments.

His Lordship claimed that the decision to prorogue was a matter for “Parliament and the electorate”, because it involved “high policy and political judgement”. I find this a rather strange conclusion to arrive at. Just because the decision to prorogue required political judgement, does not mean that it is excluded from judicial review altogether (in fact, it is difficult to think of a situation where the exercise of an executive power (prerogative or otherwise) would not involve political considerations). Greater attention should have been given to the way in which the decision to prorogue was made and its subsequent effect, rather that its particular merits or demerits. In particular, Lord Doherty should have recognised that the prorogation was the very reason why the matter could not be dealt with by Parliament. Had he have done this, it would have been clear that the prorogation had the specific effect of subverting parliamentary accountability, and thus raised questions of a constitutional, and therefore justiciable, nature. 

Whilst it may be easy to criticise Lord Doherty for this, part two of this article will outline why the appeal to the Court’s Inner House was more successful on the issue of justiciability, and how new facts, arising after Lord Doherty’s decision, made the finding of justiciability easier on appeal.

Substantive Arguments

In addition to the comments on justiciability, Lord Doherty did briefly discuss some of the substantive arguments raised by both parties, and largely disagreed with those raised by the Petitioners. The main focus for the rest of this article is on one of these arguments. In particular, I wish to consider the claim by the Petitioners that the prorogation is unlawful on the basis that the Executive had no authority to “cause or allow the United Kingdom to leave the European Union on the basis of no deal”, and I wish to explain why this claim erred in law.

Admittedly, this may seem a purely academic exercise given that the case failed on justiciability (and had subsequently succeeded on appeal), but his Lordship did not give any profound insight into why the petitioners substantive arguments were weak. I also believe that, given the political and constitutional turmoil in recent years, it is important for academics and lawyers to add to the debate, and advance the profession and public’s understanding of key constitutional legal issues.

No Authority for No-Deal: The Petitioners’ Submission

Before outlining my arguments against the Petitioners’ submission, it is necessary to try and understand their line of legal reasoning. 

First, the Petitioners considered Article 50 (A50) of the Treaty on European Union (TEU), and suggested that Parliament’s consent was required to initiate withdrawal from the EU. This is not contentious, and draws on the case of R (Miller) v Secretary of State for Exiting the European Union, where it was confirmed that A50 could only be triggered after Parliamentary consent. This is in contrast to the Respondents in this case who alleged that such could be done via the prerogative power to make or unmake international treaties (in this case, the TEU). The reasoning for the decision, as expressed by Lord Neuberger, was that the triggering of A50 would lead to individuals losing EU rights that were normally granted via the European Communities Act 1972 (ECA) s.2(1) – an Act of Parliament. Therefore, had the prerogative power been used to trigger A50, this would have been inconsistent with an Act of Parliament, and subsequently Parliament’s sovereignty. In response to Miller, Parliament duly enacted the European Union (Notification of Withdrawal) Act 2017(EUNoWA) to “confer power on the Prime Minister” to trigger the A50 process.

Second, the Petitioners suggested that, in addition to requiring Parliaments consent to begin the A50 process, such consent is also required to conclude it. This is based on the case of Wightman v Secretary of State for Exiting the European Union, where the Court of Justice of the European Union noted that the A50 notification could be unilaterally revoked by the withdrawing state. In essence, whilst the initial notification via A50 was thought to inexorably lead to withdrawal (with or without a withdrawal agreement), we now know that it can be revoked without EU approval, making the final decision to leave ultimately voluntary.

Third, the Petitioners stated that this consent to conclude the A50 process, on the basis of no-deal, has not been obtained from Parliament. On this matter, it was suggested to the Court that neither the EUNoWA, nor the European (Withdrawal) Act 2018 (EWA), when “interpreted in accordance with the principle of legality” provides any statutory authority for a no-deal Brexit. It is this aspect of the Petitioners’ legal reasoning that is the primary focus of my analysis, and therefore something that requires some deeper exploration.

It will be apparent to many that Parliament has since specifically legislated against leaving without a deal, however this was five days after Lord Doherty’s judgement. As such, the analysis below is based on the facts available to the Court at the time of the judgement.

Statutory Interpretation: The Principle of Legality

It is an established principle of statutory interpretation in the UK that an Act of Parliament can only override or remove fundamental rights if, according to R (Simms) v SS for the Home Department, it uses “express language or necessary implication to the contrary” (para 131). This ‘principle of legality’ is based on the assumption that Parliament does not, to quote Lord Steyn in Pierson, “legislate in a vacuum” and it subsequently “cannot be taken to have intended […] to abrogate fundamental rights or violate the rule of law” (para 153). In essence, if Parliament wishes to remove fundamental rights, it must do so by using very clear language and by avoiding “general or ambiguous words” (Simms, para 131).  

To come back to the third aspect of the Petitioner’s argument, they appear to suggest the following: as leaving the EU without a deal will remove the fundamental rights afforded under the ECA, an Act of Parliament must, in accordance with the principle of legality, use specific words to authorise this. It Parliament wants a no-deal Brexit, it must say so – clearly. Admittedly, the Petitioners are right to note the lack of any express language in the EUNoWA or EWA that suggests the desire for Parliament to pursue a no-deal Brexit. Indeed, the s.1(1) EUNoWA simply states:

The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

Similarly, the relevant sections of the EWA that require Parliamentary approval of any withdrawal agreement (ss. 9 & 13) contain no such language.

Necessary Implication

So far I have outlined the legal reasoning for the Petitioners’ claim that the Prime Minister has no authority to allow the UK to leave the EU without a deal. However, this is where my support for their submission ends. My contention is that the EUNoWA can be construed in a way that, whilst being in line with the principle of legality, also allows the UK to leave the EU on the basis of no deal. In particular, whilst it is true that no relevant express language can be discerned from the EUNoWA, it is, as provided for above in Simms, a “necessary implication” that granting the Prime Minister the right to trigger A50 would lead to the loss of fundamental rights normally provided for in the ECA. Subsequently, a no-deal Brexit is, contrary to the submission posed by the Petitioners, authorised by the EUNoWA. This can be illustrated by first considering the meaning of ‘necessary implication’.

In the case of R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax, Lord Hobhouse explains that a necessary implication (para 45):

distinguishes between what it would have been sensible or reasonable for Parliament to have included [his Lordship refers to this as a ‘reasonable implication’] or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.

Further, in R (on the application of Black) v Secretary of State for Justice, Baroness Hale states that Parliament’s intent should be “gathered from the words used by Parliament, considered in the light of their context and their purpose” (para 36).

In considering this dicta, I propose that a necessary implication may be ascertained where, when considering its context and purpose, the language of an Act implies that, had Parliament thought about it, it would have included it. In effect, the implication sought must be obvious.

In the case of the EUNoWA, I propose that this is satisfied, and that the authorisation of a no-deal Brexit, and the loss of fundamental rights, is necessarily implied. Whilst it is true that Wightman has identified the voluntary nature of A50, such was not as obvious when the EUNoWA was being debated:

when we vote tomorrow night we shall be taking an irrevocable step, which should not lead Parliament to be under any illusion that at a later date it can go back to remaining if it chooses, and if it does not like the deal

Sir Oliver Letwin MP, HC Hansard 31stJan 2017, vol 620, col 870.

There is nothing about revocation in the legislation […] It is a bit like saying, “If I walk down the motorway in the middle of the night, I might not get killed”—it is probably not a good idea to do it in the first place.

Geraint Davies MP, HC Hansard 31stJan 2017, vol 620, col 969.

A legal process is taking place in the Irish courts at this moment about whether—about the possibilities, the implications—article 50 is reversible. We do not know the judgment yet. Why on earth are we triggering before we know the legal position on article 50? 

Mike Gapes MP, HC Hansard 1stFebruary 2017, vol 620, col 1069.

Undoubtedly, therefore, the context and purpose of the language used when passing the Act was to commit to an irrevocable process, and MPs considered the Act accordingly. It follows that, when authorising the Prime Minister to trigger A50, they did so in the knowledge that, in any case, EU treaties would no longer apply in the UK (as per A50(3)), and the rights contained within them would be lost. This is supported by the fact that the EUNoWA was said to respond “directly to the Supreme Court judgment” in Miller that, as reiterated a number of times in this piece, derived its legal reasoning from the assumption that triggering A50 would lead to a loss of fundamental rights.

To conclude, it is correct that neither the EUNoWA or EWA contains any express authorisation for the Prime Minister to seek a no-deal Brexit. However, to borrow the definition provided by Lord Hobhouse, had Parliament thought about it, it probably would have included such an authorisation. Suppose that s.1(1) of the draft EUNoWA had read:

The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU, and subsequently agree for the United Kingdom to no longer be bound by, and benefit from, the rights contained in the EU treaties, as specified by Article 50(3) of the Treaty on European Union.   

Had this imaginary bill been placed before Parliament on the 31stJanuary 2017, I strongly believe that, given the aforementioned belief in A50 to be an irreversible process, it would still have commanded a firm majority in the House of Commons. It is therefore unsurprising that Lord Doherty was prepared to conclude that, even if the claim was justiciable, the arguments posed by the petitioners would not have demonstrated the prorogation to be unlawful.

The second part of this article on Cherry will discuss the matters relating to the appeal in the Inner House of the Court of Session, and the UK Supreme Court. As mentioned, new facts have arisen since Lord Doherty’s decision that fundamentally changed the appeal courts’ approach to justiciability, and substantially aided in supporting the petitioners’ substantive arguments.

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Tagged: Brexit, Constitution, Judicial Review, Public Law

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