John Hodgson

John Hodgson

Reader in Legal Education at Nottingham Law School

On why we are still in the “phoney war” phase of Brexit

We are still in the “phoney war” phase of Brexit. There is a constant stream of news and statistics on the potential economic impact. Equally there is a constant stream of information as to the political implications, domestically, in relation to the EU as a whole, and internationally. However, it has recently become reasonably clear that the essential negotiating position of the EU is that the UK will not be allowed a special status. To allow this would be to encourage other dissident elements.

A relationship equivalent to membership of the EEA, as with Norway, would no doubt be available, but it entails acceptance of the basic principle of free movement.

There is, however, some indication that elements of free movement are negotiable. Citizenship of the EU carries in principle the right to free movement but this is subject to conditions imposed under the treaties. Art 45 TFEU (Treaty on the Functioning of the European Union) specifically grants the right of free movement in order to take up an offer of work actually received. This is the only right specifically enshrined in the Treaty. The additional rights contained in the citizens’ rights directive (Directive 2004/38/EC) of short-term freedom of movement, and long-term freedom of movement for students and those of independent means, are not as such controversial. The Directive does reflect the case law of the CJEU, which has expanded free movement to include work seekers. The case law in question dates back to the 1970s, at a time when it was very difficult to ascertain what employment was available without travelling to the area in question. Under 21st-century conditions special treatment of jobseekers may be unnecessary. The CJEU has in cases such as Dano (Case C-313/13) and Alimanovic (Case C- 67/14) established that the rights in the Directive do not apply to those who are not economically active. There is therefore scope for reconsideration of the precise scope of the right of free movement, giving the UK greater control.

Another recent development is the judgment by the High Court in Miller v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). Despite the vitriolic response of certain elements of the mass media, this case had nothing to do with the merits or otherwise of Brexit. Art 50 TEU requires that a Member State desiring to leave the EU gives notice to do so pursuant to its own constitutional requirements. The government intended to act under the Royal Prerogative relating to the conduct of international affairs. The principal objection was that the giving of notice would be irrevocable and therefore inevitably give rise at the end of a two-year period to certain changes in legal rights currently enjoyed under statute, namely the European Communities Act 1972. Essentially the argument was that, while the government could operate under the prerogative on the international level, it could not utilise the prerogative to deprive citizens of rights. The High Court upheld the objection:

Interpreting the ECA 1972 in the light of the constitutional background referred to above, we consider that it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law (and to create the category (ii) rights) in such a way that this could not be undone by exercise of Crown prerogative power. With the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend (rights in categories (i) and (iii)) and on whose continued existence the wider rights of British citizens in category (ii) also depend. The Crown therefore has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU (Para 92).
Category (i) rights include rights capable of being replicated in domestic law following Brexit, such as rights under the Working Time Directive. Category (ii) are rights such as freedom of movement enjoyed by British citizens in other EU Member States, and category (iii) are rights in relation to candidacy for or voting in EU elections (see paras 58 – 61).

The EU constitutes a new legal order. Traditionally treaties were regarded as creating rights and obligations only for the high contracting parties, but rights and obligations under the EU treaties apply also to natural and legal persons. This was established by the CJEU in the seminal case of van Gend en Loos (Case 26/62). It is particularly significant that one of the directly effective rights is that of citizenship of the EU. Doubtless it is the contention of government that leaving the EU will result in UK citizens being deprived of EU citizenship.

The conclusion of the High Court that these categories of rights have been conferred by virtue of the European Communities Act implies that any attempt to abrogate them by negotiating exit from the EU will interfere with these rights and cannot therefore be undertaken under the prerogative since it would amount to dispensing with the existing law contrary to Art 2 of the Bill of Rights 1689 (and to the Case of Proclamations (1611) 12 Co Rep 74). The decision of the High Court is extremely robust. It has in effect declared that the principal argument presented by the Crown is fundamentally misconceived.

Miller proceeded on the assumption that notification under Art 50 is irrevocable. It suited all parties to argue this, but the consensus of informed opinion is to the contrary. A definitive ruling could only be given by the CJEU, as it is a question of interpretation of an EU instrument. No doubt the Supreme Court will seek to address the issues in the case in such a way that it is not necessary to make a reference to the CJEU, since this would involve significant further delay and, although this is not a legitimate reason for declining a reference, would only lead to a further outburst of absurd abuse.

In some respects the Miller litigation is a side issue. Although a substantial majority of members of both the House of Commons and House of Lords were personally opposed to Brexit, there appears to be general agreement that whatever procedure is required to be undertaken within Parliament to enable the Art 50 notification to be given will not be objected to. This reflects the fact that there is currently no political narrative which challenges the legitimacy of the referendum and the “mandate” it gives for Brexit. Logically this is incoherent. The referendum was advisory only. This is made very clear in para 106 of Miller. The vote was a vote to leave the EU, not a vote in favour of any particular alternative. The alternatives proposed by various proponents of Brexit are mutually inconsistent, even when they are not logically impossible.

Perhaps the greatest constitutional crisis created has been the assumption that the decision by a bare majority in circumstances where the country is split geographically, generationally and educationally has such iconic status that it cannot be challenged.