A wrong turn in Constitutional Law…

On Friday, I called the High Court Ruling a constitutional nicety. Could be I was wrong about that. Carl Gardner is about as sober a legal commentator as it gets on the London beat. And he has serious concerns about the future implications of this ruling:



Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty

  • runnymede

    All too accurate I’m afraid. The court has innovated here, and created a reason for allowing this challenge. It seems there is always a way to allow more EU integration, but never one to prevent or reverse it – the dismissal of the court challenges to Maastricht being another example.

  • AndyB

    Good news – as far as I can see, Carl has this wrong.

    Perhaps the key point in the judgement is that after Article 50 is invoked, there is no guarantee that there will be a treaty for Parliament to approve on expiry of notice.

    Therefore, if Article 50 is invoked using royal prerogative, UK law could change without Parliamentary approval.

    Treaties always come to Parliament for ratification. Directives are implemented under Section 2(2) of the EC Act, with secondary legislation being brought to Parliament to directly approve (currently by negative resolution). EU regulations are implemented under Section 2(1) of the EC Act, as an obligation under the treaty.

    The ability for ministers to negotiate treaties by royal prerogative remains untouched, simply because they have to get them ratified by Parliament. This is a very specific special case where the absence of a treaty would involve withdrawing rights granted by Parliament to UK citizens under the EC Act without Parliament’s approval.

    The devil is all in the detail of the judgement…

    EDIT: I’ve written a longer response at http://sluggerotoole.com/2016/11/06/contradicting-carls-constitutional-conundrum/

  • Brian Walker

    It iisn’t about changing EU law it’s about UK law re the withdrawal of conferred rights.Come on, a little deference is due. This court does not make elementary misjudgements for commentators to correct.

  • Brendan Heading

    What nonsense – there is a way to reverse EU integration, and that is by Parliament voting to authorise the government to invoke article 50.

    The reason why increased EU integration, social chapter etc, could occur is because Parliament authorised this when it passed the European Communities Act.

  • Brendan Heading

    Carl is a barrister, and I’ve got no legal qualifications whatsoever, but I’d really like to understand his case here.

    Firstly, the ruling last Tuesday did not “end the government’s power by prerogative to change UK law by doing anything that alters EU law”. As far as I understand it, the ruling clarified that by invoking article 50 the government would be effectively repealing parts of the European Communities Act 1972. The 1972 Act, and the rights conferred under it, is not “EU law”; it is UK law.

    Second – Carl asks “why was it lawful for Mrs Thatcher to sign up for the Single European Act ?” and “why was it lawful for Blair to sign the Social Chapter” – I am not sure why he would ask these questions, because in all of these cases Parliament voted to amend the 1972 Act to account for the relevant treaties and their incorporation into UK law.

    Third – Carl then asks what power ministers in Brussels ever had to modify UK law. This power was granted by the 1972 Act.

    I’m sure there must be a detail in the case here that I’m missing …


    The EU must be unprecedented in the history of world trade. An EU Parliament of bloodsuckers turning up at their convenience bleeding the working classes. Farage was right and I knew this long before I heard of him. Far too man politicians going around taking welfare payments while the poor fill in claimant forms.

  • AndyB

    Mate, you have as many qualifications as I do 🙂

  • PeterBrown


    I have never formally studied EU Law and its a long time since I studied Constitutional Law (or indeed wrote my dissertation on the role of the judiciary as opposed to parliament in the constitution!) but why is the triggering of Article 50 not deemed to have been authorised by the European Union (Amendment)Act 2008 which incorporated the Treaty and Article 50 into UK law? Is it not covered by 50 (1) and its requirement that this be done “in accordance with its own constitutional requirements”?

  • Brendan Heading

    An excellent question Peter, I’d like to know the answer too – it would surprise me if either the government or the High Court overlooked it.

  • AndyB

    I would say no. While the United Kingdom has the right to invoke Article 50 under section 2(1) of the EC Act 1972, there is nothing in the Article or the EC Act to explicitly grant that right to the Government as such – it leaves it up to the individual country as to whether it requires Parliamentary approval.

    It’s all about the base case.

    In principle, the Government can use the royal prerogative to enter into negotiations with any country or international body at any time.

    However, the pre-condition in this case for negotiations is that we must first give notice of withdrawing rights in domestic law, and only Parliament can authorise that.

    The base case is therefore that at the start of negotiations, we will have cancelled rights in UK domestic law, and that’s why the High Court has declared that the Government does not have the authority to do so.

  • PeterBrown

    Except that under Article 50 (3) (having read Article 50 for the first time yesterday in response to these threads)

    “(T)he Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”

    So invoking Article 50 does not mean “at the start of negotiations, we will have cancelled rights in UK domestic law, and that’s why the High Court has declared that the Government does not have the authority to do so.”?

  • PeterBrown
  • AndyB

    No, that is incorrect.

    For the UK to invoke Article 50 is to state that the UK is leaving the EU two years hence unless all parties agree to an extension of that period.

    EU membership grants rights to British citizens in Britain under the EC Act 1972 (section 2(1)).

    In British law, it is long established that a right granted by Parliament can only be withdrawn by parliament. As you’ll know, most primary legislation includes scope for ministers to lay restrictions for parliamentary approval in the form of secondary legislation.

    To invoke Article 50 is to state that British citizens shall lose all domestic rights granted under the EC Act after two years unless extended.

    For the Government to say that is in conflict with parliamentary supremacy.

    It would also be a very dangerous precedent to set.

    Royal prerogative is perfect when the only effect on us of failure to reach an agreement or have it ratified would be unilateral action by the other parties.

    It’s not acceptable to use the royal prerogative when the guaranteed outcome of failing to reach an agreement is the loss of domestic rights under UK law. To say otherwise is to open up a massive can of worms.

  • AndyB

    Ministers were not instructed to invoke Article 50 – the logic is faulty. Ministers were advised that the public wished them to invoke Article 50, in a legally advisory referendum.

    That is significant. It means that Parliament has never authorised Article 50, but only that an opinion be sought.