Francesca Strumia, Lecturer in Law, University of Sheffield
This piece revisits the recent High Court ruling on the UK government’s authority to initiate the process of leaving the EU. It delves deeper into the judgment’s EU law implications, going beyond the political turmoil it has caused and potentially extending beyond the immediate consequences of Brexit. The article argues that the judgment, though focused on UK constitutional law, also touches upon the issue of safeguarding transnational rights, such as those of British citizens in other EU countries, during a Member State’s withdrawal. The judgment raises questions about EU law from three distinct angles that deserve closer examination.
The immediate issue addressed by the judgment is whether the executive branch can utilize its prerogative powers in international relations to trigger Article 50 of the Treaty on European Union (TEU), thereby initiating the UK’s withdrawal from the EU. This is a matter of UK constitutional law, and the High Court provides an answer rooted in that framework: the executive cannot take such action. The constitutional law argument posits that the exercise of prerogative powers cannot encompass changes to domestic laws. However, leaving the EU through Article 50 would inherently alter a significant body of law that became integrated into domestic law through the 1972 European Communities Act (ECA).
The High Court, drawing on arguments presented by involved parties, distinguishes three types of EU law rights that have attained domestic law status. The first category comprises rights that could be replicated in UK law post-withdrawal, such as those derived from EU employment law. The second encompasses rights enjoyed by British citizens in other EU Member States, like the right to live and work there. The third includes rights not replicable in domestic law after leaving the EU, such as voting in European Parliament elections or initiating preliminary rulings from the Court of Justice of the European Union (CJEU). The High Court posits that Parliament, through the ECA, brought these three categories of rights into effect. Consequently, none of them can be revoked through the executive’s prerogative powers.
This reasoning holds for categories one and three. However, it encounters complications with category two. These rights are essentially transnational: rooted in EU law and stemming from UK membership, but implemented and enforced through the domestic laws and courts of other Member States. They are not UK domestic law. Nevertheless, the High Court groups them with the other two categories. Parliament, the argument goes, was aware and intended that ratifying the Treaties would result in British citizens possessing these enforceable rights in other Member States. This knowledge and intention on Parliament’s part equates to Parliament “creating” those rights. Therefore, the High Court concludes that neither rights in categories one and three, which were integrated into domestic law, nor category two rights, deemed “wider rights of British citizens” stemming from the Treaties, can be undone by royal prerogative without Parliament’s involvement. Using the same legal reasoning, the High Court achieves two distinct outcomes. Regarding rights in categories one and three, it applies the constitutional principle that the executive, acting through the royal prerogative, cannot alter domestic law. For category two rights, it further acknowledges Parliament’s, rather than the executive’s, responsibility for changing a set of transnational rights grounded in EU law.
While nuanced, this distinction has implications beyond the judgment’s core constitutional argument. This aspect of the High Court’s decision, though not explicitly stated, engages with the broader question of necessary safeguards for transnational rights when a Member State withdraws from the EU. This question connects to EU law from three perspectives: it’s rooted in EU law’s inherent nature, it might have an answer within EU law, and the answer, whether based in EU law or national choices, will inevitably impact EU law’s future.
EU law possesses a hybrid nature: it’s neither solely Treaty law nor entirely domestic law, and it encompasses transnational rights. The High Court acknowledges this distinctiveness of EU law as a defining legal element of the case: EU law principles directly link rights and obligations arising from government actions at the international level to the content of domestic law. Conversely, the presence of transnational rights within EU law adds complexity to legal issues surrounding a Member State’s withdrawal. Besides the international obligations and domestic rights affected by withdrawal, what about the transnational rights dependent on the Treaties but established and enjoyed under the domestic laws of Member States other than the withdrawing one? Are there legal barriers to removing these rights, or are they subject to the whims of the executive branch or political decisions? Safeguarding such rights is paramount, particularly compared to other categories impacted by a Member State’s withdrawal decision. Holders of these rights might lack a voice in the political process deciding a Member State’s withdrawal. The High Court’s solution is to interpret these transnational rights, specifically the rights British citizens enjoy in other Member States, as domestic rights. This subjects the process and conditions for their repeal to checks and balances, preventing their removal solely through government action at the international level.
The finding that transnational rights constitute domestic law is a legal opinion, and the solution offered by the High Court is incidental to its decision on the primary constitutional question. This, along with the main decision, may be overturned during the Supreme Court’s review. However, the High Court’s handling of this issue highlights a further EU law question for the Supreme Court to consider: whether EU law itself requires specific safeguards for transnational rights during a Member State’s withdrawal. The Treaties offer limited guidance. Article 50 allows any Member State to withdraw “in accordance with its own constitutional requirements.” This text seemingly leaves little room for EU law safeguards for particular categories of rights during this decision-making process. However, there’s a question of whether the duty of sincere cooperation under Article 4(3) TEU, binding on exiting Member States until actual withdrawal, constrains the decision-making process outlined in Article 50. Article 4(3) requires, among other things, that Member States facilitate the EU’s tasks and avoid jeopardizing its objectives. Could this be interpreted as mandating specific safeguards, during the withdrawal process, for minorities and disenfranchised stakeholders whose rights and interests the EU aims to protect? While potentially a stretch, this is another question the CJEU might need to address.
Ultimately, whether mandated by EU law or driven by independent constitutional arguments, the safeguards provided to transnational rights during the process of deciding upon and initiating withdrawal will impact the future of EU law. This is a legal framework identified by many theorists, from Philip Jessup to Kaarlo Tuori, as the first concrete example of transnational law. Leaving a transnational legal system and its impact on laws transcending borders represent a crucial test for its credibility and dependability. The point isn’t to silence any democratic majority or halt Brexit. Nor is it to side with the argument that the EU is like Hotel California—you can check out anytime you like, but you can never leave. The point is that the process of withdrawal, even when set in motion by a democratic majority, has ramifications extending far beyond that majority’s jurisdiction and reach. Firstly, it affects the status and rights of constituencies that were far from disenfranchised in the relevant democratic process. Secondly, it strips participating but opposing minorities of their transnational rights without recourse. How these constituencies, minorities, and their interests are considered during the decision and process of withdrawal will speak volumes about the democratic legitimacy and credibility of EU transnational law. In this regard, the choices made by a withdrawing Member State with a strong tradition of constitutional democracy and adherence to the rule of law (as noted in the High Court judgment) will set a precedent and carry weight far beyond the specific circumstances of Brexit.
Barnard & Peers: chapter 27
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