Brexit: The High Court fills a Legislative Lacuna

The intention of Parliament … is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the [statutory] language used (Lord Nicholls of Birkenhead)

‘it is inappropriate for the courts to trespass further than parliamentary intention by … filling … a lacuna under the guise of public policy’ (Mr Justice David Steel)*

The famous Brexit case is formally cited as R v Secretary of State for Exiting the European Union on the application of Miller and Another (2016) EWHC 2768 Administrative Court.  It concerns the British exit (or Br-exit for short) from the European Union (‘the EU’).

What exactly is the EU?  The EU is constituted by a number of treaties (i.e contracts) made between the member states.  Joining the EU therefore means acceding to, becoming a party to, the EU treaties.  By the same token, leaving the EU means withdrawing from, ceasing to be party to, those treaties.

The issue raised by the Brexit case concerns ‘whether, as a matter of the constitutional law of the United Kingdom [not EU law], the Crown … is entitled to use its prerogative powers to give notice … for the United Kingdom to cease to be a member of the European Union’ (para 4).  Can the Crown withdraw the UK from the EU treaties unilaterally under the Royal Prerogative, or does it require the authority of Parliament to do this?

The High Court (not the usual single judge but 3 of the most senior judges in England, assisted by no fewer than 24 barristers) concluded unanimously that the Crown does not have such unilateral power.  The consent of Parliament is therefore required.

The decision has been the subject of fierce but legally inarticulate criticism.  Few constitutional lawyers have opposed it.  The Supreme Court will shortly hear an appeal, which it is widely expected to dismiss.

It is well settled that the Crown, not Parliament, negotiates treaties with other countries on behalf of the UK.  The High Court acknowledged that ‘the conduct of international relations is a matter for the Crown in the exercise of its prerogative powers’ (para 89).  Withdrawal from the EU treaties obviously engages international relations between the UK and the other members of the EU.  So why should this matter be treated any differently from other international business?

The High Court’s answer was that parliamentary approval is required because of the effect of withdrawal on UK domestic law.  ‘It is precisely because … the conduct of international relations [normally] has no effect in domestic law that the courts accept that this is a field of action left to the Crown …’ (para 89).

The European Communities Act 1972 (‘the ECA’)

The United Kingdom joined the EU on 1st January 1973, after Parliament had passed the European Communities Act 1972 (‘the ECA’).  For all its constitutional significance the ECA is a very short piece of legislation, with just 12 sections as originally enacted.  (This brevity was deliberate, to facilitate the Bill’s controversial passage through Parliament and discourage amendments.)

Why was the ECA needed in the first place?  The High Court explained that

‘by reason of the limits on its prerogative powers … the Crown could not have ratified the accession of the UK to the European Communities under the [EU] treaties … unless Parliament had enacted legislation.  Legislation … was needed to give effect to EU law in [UK] domestic law … as was required by those [EU] treaties …

‘… If this legislation [i.e the ECA] had not first been put in place, ratification of the treaties by the Crown would have immediately have resulted in the UK being in breach of its obligations under them, by reason of the absence of provisions for direct effect of EU law in domestic law’ (paras 41 and 42).

This suggests that the ECA was passed because the Royal Prerogative was in need of legislative support in order to ratify the EU treaties properly in accordance with international law.  As we shall see, the Court’s conclusion on the Brexit case is arguably inconsistent with this account, its own explanation for the ECA.

S.2(1) of the ECA provides that ‘rights … created by or arising … under the [EU] treaties … are without further enactment to be given legal effect … in the United Kingdom [and] shall be recognised and available in law, and be enforced … and followed accordingly’.  It further provides that ‘the expression enforceable Community right … shall be read as referring to [these rights]’.

The effect of s.2(1) is therefore that EU-inspired rights, which are enjoyed today by millions of people, are incorporated into UK domestic law.  Leaving the EU will not per se repeal the ECA.  (Repeal will undoubtedly require legislation.)  However, Brexit will affect the legal rights to which the ECA gave effect.  The High Court suggested that ‘virtually everyone in the United Kingdom or with British citizenship will … have their legal rights affected if notice [of withdrawal] is given’ (para 7).

Some EU-inspired rights, such as those relating to employment, could continue in domestic law even if the UK left the EU (para 58).  Other rights (eg freedom of movement and trade within EU countries) could continue only with the agreement of the remaining EU members (para 59).  Some rights (eg the right to stand for election to the European Parliament) would be lost completely (para 61).

Thus the Brexit case exposes a tension between 2 constitutional principles

(1) the Royal Prerogative to make, and withdraw from, international treaties and

(2) Parliamentary supremacy over domestic law.

Constitutional principle asserts that, while dealings with other countries are indeed a matter for the Royal Prerogative, the Prerogative cannot be used to alter domestic law.  Withdrawal from the EU will alter domestic law because of s.2(1), even though it will not repeal the ECA.  This means that constitutional principle (2) trumps (1) if there is a conflict between them.

However, the status of the EU-inspired rights in domestic law depends on the ECA.  The ECA is an Act of Parliament, not a constitutional principle.  Absent the ECA the EU rights would have no status at all in UK law.  The Brexit case therefore turns on the question of what Parliament intended by legislating as it did.  It does not turn on constitutional principle per se.  The High Court acknowledged that its decision must depend on ‘What Parliament intended by legislating in the [ECA]’ (para 82).

The answer to that question, however, was loaded with a presumption that Parliament intended to legislate in accordance with the constitutional principles identified by the Court.  ‘Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them’ (para 82).

All presumptions are rebuttable, of course.  (2) will not trump (1) if ‘it [can] be inferred that … Parliament … intended … to produce effects at variance with [constitutional principle]’ (para 82), i.e if it can be inferred that Parliament intended, when it passed the ECA, that the Royal Prerogative could be exercised even though this would affect the s.2(1) rights.

The Court therefore reviewed the text of the ECA.  Not just s.2(1), but s.2(2), and s.1 and s.3.  Also the long title of the Act ‘to make provision in connection with the enlargement of the European Communities to include the United Kingdom’.  Also the heading of s.2 ‘General Interpretation of Treaties’ (para 93).

Having done this, the Court held that it is ‘clear that Parliament intended … to introduce EU law into domestic law … in such a way that this could not be undone by the exercise of Crown prerogative power’ (para 92).

The Intention of Parliament

Thus the Court’s conclusion was that Parliament had a twofold intention when it passed the ECA:

(1) to give effect to the EU treaties by introducing the treaty rights into domestic law (obvious) and

(2) to ensure that those rights could not be ‘undone’ by Royal Prerogative in the future.

Conclusion (2) above is therefore the essential reason, the ratio decidendi, for the High Court’s decision on the Brexit case.  Not constitutional principle per se, but the intention of Parliament deduced from the text of the ECA, albeit subject to a presumption that that intention will accord with constitutional principle.

It is argued that the High Court’s conclusion (2) was wrong and that its decision on the case was therefore wrong also.

The obvious difficulty with conclusion (2) is that the ECA says nothing about leaving the EU.  It is concerned only with joining the EU.  It regulates UK membership of the EU while that membership continues.  However, it makes no provision for the cessation of UK membership.

As Lord Nicholls indicated (in the dictum quoted above) the intention of Parliament depends on the language used in the statute.  The High Court did pay close attention to the language of the ECA, but this exercise merely demonstrates that the ECA simply does not address the issue raised by the Brexit case.

This means that, in reaching conclusion (2), the High Court went beyond the language of the ECA.  It imputed to Parliament an intention that Parliament did not have.  It effectively implied an unwritten provision into the ECA that Brexit requires the authority of Parliament.

If the ECA did contain a ‘Brexit clause’ that provided for, or even referred to, the possibility of EU withdrawal, then the High Court would indeed be right to interpret this provision or reference conformably with ‘background constitutional principles’.  But, as it is, there is no such provision or reference.

Perhaps the ECA ought to have included a Brexit clause, to regulate any future withdrawal from the EU.  The absence of such a provision in the ECA is arguably anomalous, a lacuna (i.e a gap or loophole).  But the Court’s function of giving effect to the intention of Parliament does not extend to filling in legislative lacunae on Parliament’s behalf.  That is a matter for Parliament itself.

Parliament has now had the best part of half a century to assert its supremacy by amending the ECA so as to include a Brexit clause.  It is still not too late for it to do so.  (And presumably it will do so if the appeal to the Supreme Court fails.)  But deciding whether or not to amend the ECA is none of the High Court’s business.

Thus it could be argued that, by presuming to fill the lacuna in the ECA concerning Brexit, the High Court was itself guilty of infringing the constitutional principle of parliamentary supremacy.

The High Court stressed the implausibility of Brexit by Royal Prerogative alone.  If an Act of Parliament gives effect to important legal rights then surely any interference with those rights must require another Act of Parliament?  ‘Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems … it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action … to switch it off again’ (para 87).

Yet there is no implausibility if we consider the historical context of the ECA.  In the early 1970s, as today, the Crown was represented by a Conservative government with a slender majority in Parliament.  The Bill that became the ECA was only passed in the face of determined opposition from within the government’s own party as well as from the official opposition.  Hence its brevity.  (History repeated itself two decades later, when Parliament passed the European Communities (Amendment) Act 1993, which concerned the Treaty of Maastricht.)

The political situation in the early 1970s was therefore the exact opposite of what it is in the current Brexit case.  A strongly pro-EU government was striving, from a distinctly weak position, to persuade a sceptical legislature to join the EU.  When viewed in this context, it is not surprising that the ECA fails to address the possibility that the government might one day seek to withdraw from the EU against the wishes of the legislature.

The High Court’s own account of the EU accession (paras 41 and 42, quoted earlier) suggests that the purpose of the ECA, i.e the intention of Parliament, was to strengthen the Royal Prerogative, not to limit or exclude it.  It could even be argued that Parliament’s intention in passing the ECA concerned international law, not domestic law at all.  Parliament intended to empower the Crown to ratify the EU treaties effectively, hence to ensure UK compliance with international law.  The introduction of EU law into UK domestic law was therefore merely incidental upon that ratification.

* Lord Nicholls’ dictum is taken from the case of R v Secretary of State for the Environment ex parte Spath Holme Ltd (2001) 2 Appeal Cases 349 at p.395.  That of David Steel J is from Hashwani v Jivraj (2010) 1 All England Reports 303 at p.317.