Triggering Article 50
Professor Carl Lygo
Friday 9th December 2016: Although the House of Commons backed the government’s triggering article 50 this week, the Supreme Court has yet to decide on ‘the lawful way’ to implement the people’s wish to leave the EU. Carl Lygo, Professor of English Common Law and Vice Chancellor of BPP University, explains that there is nothing to fear from the legal principles on which this case will be decided, but distrust has arisen because legal thinking lost its way at the behest of the European Court of Justice.
The unprecedented Brexit legal case is quite frankly a lot of fuss about nothing. Parliament will eventually need to pass an Act of Parliament to repeal the European Communities Act 1972, as there is no other way of bringing to an end to an Act of Parliament other than passing a new one that gives the power to repeal the earlier. The issue in this Brexit case has been to confuse whether exercising Article 50 in the Treaty of European Union also requires legislation, because ultimately it must lead to an end for the European Communities Act 1972. Article 50 provides that:
‘1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.’
My view is Article 50 can be triggered separately by prerogative powers but to give the full effect to the will of the people, the 1972 Act will eventually need to be abolished by new legislation (which means a vote in Parliament). I voted for Brexit: I think I am the only University Vice Chancellor to have supported Brexit. My reason is clearly not because I am ignorant, nor poor (as the classic liberal explanation for why people voted for Brexit would have you believe) but because I believe in the sovereignty of the Westminster Parliament. As a Professor of English Common Law, I know that the Common Law accords legislative supremacy to Parliament. We directly elect representatives to Parliament who have the powers to make laws that govern us. The vilification of our Judges following the Brexit decision in the High Court by some newspapers was vile and should be condemned by all.
As Lord Neuberger has said in the case before the Supreme Court, the decision is not a political one: it is not whether Brexit can happen but what the lawful way is of bringing about the wishes of the people. So why has all this distrust been stirred? I believe it is because our legal thinking lost its way at the behest of the European Court of Justice. A brief history of the leading cases on the topic illustrates this.
As every Law School student knows, EU Law derives its status in English law from the European Communities Act 1972 (section 2(1)). It is not possible in our law to ‘entrench’ a law so that it can never be changed. A subsequent Parliament has always had the power to repeal that 1972 Act and thus end EU supremacy in the UK. In the early days of the Common Market, the leading Judges in this land fought an intellectual battle to keep EU law at bay. Lord Denning, perhaps one of the most famous Judges of all time, restricted European law to the ‘narrow dealings of the Common market’. In the case of Bulmer v. Bollinger  Ch 401 Lord Denning famously referred to European Law as an incoming tide, stating that ‘it flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.’ By the 1990s, our Courts were being compelled by the European Court of Justice to regard European Law as superior to even an Act of Parliament and that citizens could claim damages against a Government for an Act of Parliament that contravened European Law. The decade long Factortame cases established this when ruling on the legality of the Merchant Shipping Act 1988 requirement for UK fishing vessels to be 75% UK owned. European Law was eroding the sovereignty of our Parliament. By 2006 Lord Steyn in the case of Jackson v. Attorney General  1 AC 262 went so far as to suggest that there might be some laws ‘which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.’ How astonishing is this? How did we end up in this position where some laws cannot be abolished by the direct will of the people? How can the rule of law prevail under this thinking? It is this type of thinking that legitimately causes concern that Brexit will be prevented by some legal connivance. But the champion of the common law has already revealed himself. Lord Neuberger (an alumni of BPP University) has already declared that the case does not involve the legality of Brexit. Lord Neuberger, the most senior Judge in our land, has in past cases declared himself for the sovereignty of Parliament recognising that European Law was not supreme to everything. In the case of R (Buckinghamshire County Council) v. Transport Secretary  1 WLR 342, Lord Neuberger stated ‘the United Kingdom has no written constitution but we have a number of constitutional instruments. They include Magna Carta, the Petition of Rights 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707…The common law itself also recognises certain principles as fundamental to the rule of law.’
The present ‘Brexit case’ is an unprecedented case with every single Supreme Court Judge sitting to hear and determine the case. The House of Commons has already overwhelmingly backed the Government’s triggering of Article 50; the will of the elected Parliament is clear. There is nothing to fear from the legal principles on which this case will be decided but there is just enough doubt to keep us all on the edge of our seats!
*Carl Lygo is a Professor of English Common Law and the founding Vice Chancellor of BPP University, which educates approximately 40% of all new lawyers entering practise in England and Wales.