Over the course of Monday afternoon and evening this week, the House of Commons and then the House of Lords debated whether to accept the amendments to the European Union (Notification of Withdrawal) Bill that had been made by the Lords.
These debates, indeed all on the Bill, were the direct result of an unprecedented public interest case, R (Miller and Dos Santos) v Secretary of State for Exiting the European Union, in which the Divisional and Supreme Courts both held that responsibility for authorising the Article 50 process to take the UK out of the EU lies with Parliament, not the Government. The CrowdJustice funded People’s Challenge group played an important part in the case, successfully pressing the Courts to accept that individual rights could not be stripped away without primary legislation.
The Government’s response to the Supreme Court ruling was ‘disappointment’ followed by the short Bill and a White Paper with plenty of optimism but little detail and nothing at all on contingency plans for the breakdown of negotiations (unsurprisingly, as it has emerged none have been made).
The Bill was passed by the Commons unamended, despite a Second People’s Challenge campaign to persuade MPs to take responsibility. The campaign had more success in the Lords, and safeguards were introduced that would have improved parliamentary scrutiny during the process. But when the Bill returned to the Commons they were stripped away, thanks to the Government’s majority, the support of the DUP and a few pro-leave Labour MPs. An EU residents’ rights amendment had a similar fate. The Bill has just become an Act with no substantive changes to the wording. Notification of the UK’s intention to leave the Union can now be lawfully given and very soon will be.
Many may feel that the opportunity created by the hard work, courage and commitment shown by all who fought the Government in the Miller litigation has been squandered by MPs more concerned with fetishizing the ‘will of the people’ than the future of the nation. But this is a short term view at best. History will not measure the value of the Miller case or the People’s Challenge campaign that followed it on the basis of the final Commons vote or what the Notification of Withdrawal Act says.
First, the Miller case itself concerned much more than Brexit. It was about whether the Government could take away rights using prerogative powers without Parliamentary authority. The attempt to do so was an extraordinary executive power grab – and it was completely thwarted. The courts gave a straightforward answer to the question of principle in the case - taking rights away from citizens is not something the Government can legally do using the vestigial powers of the monarch. Whether Parliament is a careful or careless guardian of our citizenship rights, it remains their guardian.
Secondly, the case helped weave the safety net now in place below the tightrope onto which the Government is about to set foot. Within days negotiations will begin over the terms of withdrawal, the UK’s future relationship with the EU, what should happen to EU nationals living in Britain and their British equivalents living elsewhere in the EU. Article 50 allows the UK two years to try and reach a deal on these things, not only with the EU institutions but also with each of the remaining 27 states. That challenge is enormous. In public, at least, the Government claims it is optimistic about the prospects of success, but parliamentarians of all parties and business leaders are rightly sceptical. There is, on any sensible view, a very real risk that, as the end of the two-year negotiation period approaches in March 2019 there will be no deal, or perhaps one simply confined to the mechanics of withdrawal.
What then? On this the People’s Challenge group commissioned, published and disseminated the best legal advice available - the Three Knights Opinion from former CJEU Judge Sir David Edward, former Advocate General Sir Francis Jacobs, EU law pioneer Sir Jeremy Lever and QCs Helen Mountfield and Gerry Facenna. Their view is unequivocal; the Miller ruling makes it clear that, at the end of the negotiation process, Parliament must have more than merely a vote on a legally meaningless resolution. Before the UK can withdraw from the EU, there needs to be further legislation authorising the removal of fundamental citizenship rights in line with any proposed agreement or the total snuffing out of rights that would follow were we to leave the EU with no agreement at all.
So Parliament has yet to complete its constitutional function; it has allowed the Prime Minister to formally confirm the Government’s intentions, but no more. As ex Supreme Court Justice Lord Hope has warned, the law will likely catch up with the Government if it will not accept this. Earlier this week Gina Miller said she would take further legal action herself if it is needed. And if the People’s Challenge group’s involvement in such a claim will add value, it stands ready to return to court too.
Thirdly, the Miller case left open the question of whether an Article 50 notification could be withdrawn. The Three Knights Opinion confronts this too. Its authors say that notification can be withdrawn, provided that it is done in good faith. The EU is based on democratic principles and in democracies minds can change. Conspicuously, the Government has avoided arguing that the Opinion is wrong on this point. It will not even confirm nor deny that it has had legal advice on this important issue. Instead it mumbles the mantra that withdrawing the notification is not Government policy, or says that withdrawal of an Article 50 notice is unprecedented. This evasiveness tells its own story.
It is important to be realistic about the precarious situation the country now finds itself in; these are dangerous times. But it is equally important to appreciate that the work done so far to protect Parliamentary sovereignty will have enduring value. And it will also empower Parliament to act in the future to confront the dangers of Brexit and avoid them – if Parliamentarians have the will to do so.
John Halford acted for the People’s Challenge Group, interested parties in Miller, and supported them throughout their campaign on the Notification of Withdrawal Bill.
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