Learned opinion against the High Court Judgement

Introduction: why are Government ‘sources’ predicting failure?

On 4 November 2016, the day after the High Court had handed down its judgement that the Government ‘does not have power under the Crown’s prerogative to issue the Article 50 notification’, the Prime Minister’s spokesman said that ‘the focus of the government’ was on the Supreme Court appeal, and that they remained ‘confident of winning that case and proceeding with Article 50’.

On 7 November 2016, David Davis told Parliament that the Government disagreed with the High Court’s judgement, that their position remained that ‘triggering Article 50 is properly a matter for the Government using its prerogative powers’, and that they would therefore be appealing the judgement at the Supreme Court.

On 1 December 2016, John Finnis, Emeritus Professor in the Faculty of Law at Oxford University, in his Thomas More Lecture at Lincoln’s Inn Fields, four days before the Supreme Court hearings and therefore presumably on the basis of the Government’s written submission, said that ‘the principle of constitutional dualism at the intersection of international affairs with domestic law’ had ‘been presented much more clearly and fully’ than it had been to the High Court, intimating that he had not given up hope of a reversal of the decision.

I find it odd therefore that Government sources were reported by the Guardian on 11 January 2017 to be ‘convinced’ that ‘seven of the 11 judges will uphold the high court’s’ judgement. Why the defeatism?

I have been struck by the weight of academic opinion critical of the High Court judgement, and of Barber et al’s argument before it. For example, I have found a total of seven full Professors at the Universities of Oxford and Cambridge who favour the Government view that it can issue the Article 50 notification through the prerogative power. In contrast, I have found only one (Paul Craig) who prefers the claimants’ viewpoint. The Law Departments of Cambridge and Oxford rank first and second in UK rankings (Guardian, Telegraph) and second and third in an international ranking.

In this post I list full Professors in the UK who argue that no Act is required before the Government issues the Article 50 notification, and quote briefly from their articles, to give a flavour of their position. I have added one non-academic, Lord Millett to the list, because of his stature and the importance of his article in the UK Supreme Court Yearbook. I hope to compile a similar listing for those who agree with the High Court that an Act should be passed before the notification is issued.

I am not attempting to prove anything by this post. Clearly, the correctness of legal arguments is not determined by the number or stature of those who favour them. I do think nevertheless that long experience and great learning is of great value in a case like this which concerns the fundamentals of our constitution. My purpose here is simply to challenge the prevailing assumption that the Government will lose the appeal, and to awaken a renewed interest in the High Court Judgement. If these learned and distinguished men are right, then the judgement was wrong and should be overturned.

1) John Finnis FBA, Professor Emeritus of Law & Legal Philosophy at the University of Oxford and Biolchini Family Professor of Law in the University of Notre Dame.

Terminating Treaty-based UK Rights’, 26 October 2016:

See also:

Terminating Treaty-based UK Rights: A Supplementary Note’, 2 November 2016

‘“Intent of Parliament” Unsoundly Constructed’, 4 November 2016

Brexit and the Balance of Our Constitution’, Sir Thomas More Lecture, Lincoln’s Inn, 1 December 2016:

The ‘principle of legality’ would be damaged if the Supreme Court were to reject the ‘principle of constitutional dualism at the intersection of international affairs with domestic law’:

2) Mark Elliot, Professor of Public Law, University of Cambridge

Brexit, On why, as a matter of law, triggering Article 50 does not require Parliament to legislate’, 30 June 2016

Miller: Statutory Interpretation and the Contestability of Constitutional Principles’, 4 November 2016:

the Court engaged in a highly creative process of statutory interpretation

with Hayley J. Hooper: ‘Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union’, 7 November 2016:

‘in certain respects the Court simply goes astray and gets the law wrong.’

3) Kenneth Armstrong, Professor of European Law, University of Cambridge

Push Me, Pull You: Whose Hand on the Article 50 Trigger?’, 27 June 2016:

Their argument is an intriguing one but I don’t think the claim is compelling.

4) Christopher Forsyth, Emeritus Sir David Williams Professor of Public Law, University of Cambridge

The High Court’s Miller Judgement’, 8 November 2016 (my emboldening):

the court’s judgment, while powerful and orthodox, is vulnerable on appeal to the Supreme Court.

Forsyth supports Finnis:

but then asks whether it is not at least arguable in addition, or as an alternative, that:

by the 2015 Act, Parliament impliedly delegated the power to make the decision on whether the UK remained in the EU to the people voting in a referendum?

He suggests that such an analysis:

offers a logical and smoother path to Brexit that should appeal to all except those determined to frustrate the decision of the people.

5) David Feldman, Rouse Ball Professor of English Law, University of Cambridge

Brexit and the UK’s Constitution’, 19 July 2016:

This seems to be a misreading of the section…

Brexit, the Royal Prerogative, and Parliamentary Sovereignty’, 8 November 2016:

I thought that my view was self-evidently correct…

6) Leslie Green, Professor of Philosophy of Law, University of Oxford

Should Parliamentary Sovereignty Trump Popular Sovereignty?’, 3 November 2016:

No one supposed that a clear result might be treated as … a preliminary comment in a national seminar on the constitution. …

The breadth of the doctrine is breathtaking. … it declares that any popular vote is of zero legal relevance until Parliament expressly chooses otherwise.

7) Timothy Endicott, Professor of Legal Philosophy, University of Oxford

This Ancient, Secretive Royal Prerogative”’, 11 November 2016:

home truths of constitutional law…

Parliament and the Prerogative: From the Case of Proclamations to Miller’, 1 December 2016:

it is a fallacy to say that, if Parliament has enacted a statute giving effect to rights arising under a treaty, the Government cannot take action that would terminate those rights.

8) Adam Tomkins, John Millar Professor of Public Law, University of Glasgow

Brexit, Democracy and the Rule of Law’, 5 November 2016:

I think the court’s ruling is wrong.

it would be perfectly lawful to trigger Article 50 under the prerogative…

9) Philip Norton (Lord Norton of Louth), Professor of Government, University of Hull

The High Court judgement: keep calm and carry on…’, 6 November 2016

The judgement is flawed. I believe the reasoning of the court is mistaken and is in several respects.

this is the core point, the rights … are treaty-based UK rights and not ‘statutory rights enacted by Parliament.’

10) Graham Gee, Professor of Public Law, University of Sheffield

Mixing the Old and the New in Miller’, 4 November 2016:

I regard [the judgement] as mistaken

(strained and unconvincing?) legal fictions … (twisted?)…

11) Lord Millett, Non-Permanent Justice of the Court of Final Appeal of Hong Kong; retired Lord of Appeal in Ordinary, House of Lords

Prerogative Power and Article 50 of the Lisbon Treaty’, The UK Supreme Court Yearbook, 25 November 2016:

It would be an odd legal system which could hang a man, but could not deprive him of the right to reside in another country without the consent of the legislature.

12) Keith Ewing, Professor of Public Law, King’s College London

Professor Ewing does not believe that the Government can trigger Article 50 through exercise of the prerogative power. Rather, he believes that the Government already has the necessary statutory authority through the incorporation of the Lisbon Treaty into UK law through the European Union (Amendment Act 2008). 1

by incorporating Article 50, Parliament has provided that authority and government power to withdraw as a matter of domestic law.

(To the best of my understanding, this view is not incompatible with John Finnis’s dualist view; it is possible I think to hold that the Government has both prerogative power and statutory authority to issue the notification.)

Andrew

Notes:

  1. See also Robert Craig’s ‘Triggering Article 50 Does not require Fresh Legislation’ for an exposition of this argument.

If an Act is required, why did apparently no-one say so prior to the referendum?

In my penultimate post I recorded several instances when the Government, with support on occasion from the Opposition, undertook to make our EU membership a matter for decision by the British people in a referendum, calling that decision ‘the final say’, or ‘the final decision’. I pointed out that if the Supreme Court were to uphold the Judgement of the High Court, then the final decision would be made by Parliament, and the referendum would become, so to speak, the penultimate decision, and no longer the final one. Thus the Government would be obliged by the Courts to breach its commitment to the British people, which is a very serious matter.

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Reply to Richard North on conformity assessment and the WTO option

I am pleased that Richard North has responded today to my series of posts on conformity assessment and the WTO option, which begin here. He claims, first of all, that I have made mistakes ‘relating to the activities of “notified bodies” and the continued recognition of UK bodies after a sudden withdrawal by the UK [from the EU].’

Status of UK Notified Bodies after Brexit

In part 2 of my series, in the section entitled ‘UK Notified Bodies after Brexit’, I explain why I think it ‘almost certain’ that, in the absence of an agreement on the mutual recognition of conformity assessment bodies, the UK Notified Bodies would lose their notified status. I conclude the section by stating that I will henceforth assume that to be the case for the sake of the analysis:

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‘The final decision’: or was it?

23 January 2013, Bloomberg: ‘this will be your decision’

David Cameron, in his Bloomberg speech of 23 January 2013 in which he announced a new Conservative Party policy to hold a referendum on the UK’s membership of the European Union, made it clear that the decision was to be made by the British people:

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The EU-US MRAs (part 2): agency recognition as an alternative to MRAs

In my last post I traced the origins of the 1998 EU-US MRA on conformity assessment back to the Internal Market program of 1985-92 and its New Approach to product safety legislation. In accordance with the Community’s obligations under GATT, and the GATT Standards Code in particular, both the essential requirements that products had to meet, and the assessment procedures laid down to demonstrate their conformity with those requirements, were formally exactly the same for all products, whether imported or produced in Member States. The potential problem for third countries was that the third party conformity assessment bodies (CABs), whose involvement was necessary for some products, were designated by Member States and might naturally be expected to be established in the same Member State. Would it therefore be necessary for third country manufacturers to send their products to laboratories in the Community for type approval? And where the procedures required inspection of the manufacturing facilities and quality control systems, would inspectors have to come from Europe to carry them out, at considerable expense to the manufacturer?

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The EU-US MRAs on conformity assessment (part 1): Fortress Europe?

In my last post, I examined a claim made by Nick Clegg that MRAs on conformity assessment are needed by exporters from third countries if consignments are not to be ‘impounded and checked at the EU border’:

clegg

I pointed out that China does not in fact have an MRA with the EU on conformity assessment, and explained how it is able to satisfy the EU’s product legislation requirements in the same basic way as an EU manufacturer does, either through a manufacturer’s Declaration of Conformity or, where third party certification is needed, through local test facilities, which are in either a subsidiary or subcontracting relationship with an EU-based Notified Body.

In this series of posts, to complete the picture as it were, I look at the second country named by Clegg as having an MRA with the EU and show that, while there are indeed two such EU-US MRAs in existence, they play only a marginal role in helping US manufacturers to export to the EU. The story of the first of these, the 1998 ‘Agreement on mutual recognition between the European Community and the United States of America’, is of considerable interest in its own right, as much effort was invested in attaining the agreement, and great hopes were attached to it, but in the end it is generally considered to have been a partial failure. There exist detailed accounts of the negotiations by Schaffer (2002) 1 and Deveraux  (2006) 2, which give valuable insights into the differences between US and EU regulatory structures, as well as into the conduct of trade negotiations. In this post, I try to explain the events that led in May 1989 to a joint US-EU commitment to open discussions on mutual recognition of conformity assessment.

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Notes:

  1. G. Schaffer, ‘Reconciling Trade and Regulatory Goals: The prospects and limits of new approaches to transatlantic governance through Mutual Recognition and Safe Harbor Agreements’, Columbia Journal of International Law 29 (2002-3)
  2. C. Deveraux ‘The Mutual Recognition Agreements’ in ‘Case Studies in US Trade Negotiation’ by C, Deveraux, R. Lawrence, M. Watkins (Washington DC: Institute for International Economics). Another version with references can be found here.

Conformity assessment and the WTO option (part 3): testing in third countries

In my previous two posts (here and here), I have been examining the concern that has been expressed, notably by Andrew Tyrie MP, about the obstacles UK manufacturers might face in exporting to the EU under the WTO option, because of the need to ensure that their products continue to conform to EU product legislation, and because of a need moreover to be able to prove that conformity. I have been confining myself to products covered by the New Approach legislation, and have focussed on the form which that legislation has taken since the introduction of the New Legislative Framework in 2008. My main conclusions so far have been that:

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Conformity assessment and the WTO option (part 2)

In my previous post, I introduced the concern that has been expressed, notably by Andrew Tyrie MP, about the obstacles UK manufacturers might face in exporting to the EU under the WTO option, because of the need to ensure that their products continue to conform to EU product legislation, and because of a need moreover to be able to prove that conformity. I am confining myself to products covered by the New Approach legislation, and have focussed on the form that legislation has taken since the introduction of the New Legislative Framework in 2008. The main points were:

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Conformity assessment and the WTO option (part 1)

As the government prepares for the Article 50 withdrawal negotiation, and (probably) a parallel negotiation on the UK’s future relationship with the EU, it becomes increasingly important to form an accurate assessment of the consequences of failing to reach a trade agreement before the two years are up (and of failing also to agree an extension to the talks). If, as some say, the results would be disastrous, then we would be in an extremely weak negotiating position. Better, it is sometimes said, to join EFTA and the EEA, despite the admitted drawbacks of such a course, than to risk the WTO option. In particular, it has been argued that an extra requirement to prove the conformity of their products to EU product safety legislation would greatly hinder UK exporters.

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Article 50: who will negotiate for the EU?

The Barnier Appointment

In a Press Release on 27 July 2016, the European Commission announced that Commission President Juncker had appointed Michel Barnier as ‘Chief Negotiator in charge of the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 of the TEU [Treaty of the European Union]’:

Barnier press

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