The rights and wrongs of the High Court ruling on triggering Article 50

The UK Supreme Court will soon decide whether parliament has a say on Brexit. A lot rides on the decision, but either way one side will claim victory for ‘the people’.

Zaki Nahaboo
16 January 2017

People gather outside the UK Supreme Court on 5 December 2016, while judges inside hear the government's appeal of an earlier High Court ruling stating that it must receive parliamentary approval before triggering Article 50. Tim Ireland/Xinhua/Sipa USA/Press Association. All rights reserved.

The legal rights of all Britain’s inhabitants have become increasingly uncertain. The status of EU nationals who will reside in ‘post-Brexit’ Britain is still undecided. The future of existing EU legislation, such as the limiting of working hours and the right to be forgotten online, may not find enduring traction once incorporated into domestic law. While the 1998 Human Rights Act was in part an outgrowth of the Council of Europe's European Convention on Human Rights (ECHR) and not the EU, its days may too be numbered as movement towards its repeal gains momentum due to Brexit. As a consequence, asylum seekers and advocates may soon find themselves with diminished instruments for pursuing justice. Speculation and scrutiny reign in equal measure.

Lifting the Brexit fog and finding a clear path towards a potential ‘post-Brexit’ rights regime has received significant attention through select committees, academia and civil society. These avenues of inquiry are currently frustrated by the absence of plans for Britain’s excision from Europe in the public domain. Yet even without gaining access to the intricacies of Britain’s proposed terms of exit, certain parameters for conceptualising rights are beginning to organise dominant debates. The High Court ruling on R (Miller) v Secretary of State for Exiting the European Union and subsequent media coverage crystallises some of the key ways in which rights are being publicly framed and enacted in the run-up to Britain’s formal departure from the European Union.

The High Court ruling and the migration of rights

On 13 October 2016 Gina Miller, Dier Dos Santos, and the crowdfunded People’s Challenge placed the government’s manner of leaving the EU under judicial review. They were concerned that the government’s procedure for triggering Article 50 of the Treaty on European Union, the provision for allowing member states to leave the EU, was not legal since no legislation had been passed in parliament that could authorise its execution.

Leaving the EU offers an opportunity to redraw the boundaries of inclusion and exclusion, and political will is tilting towards the latter.

The case was heard in the High Court and presided over by Lord Chief Justice Lord Thomas, Master of the Rolls Sir Terence Etherton, and Lord Justice Sales. During R (Miller) v Secretary of State for Exiting the European Union the government defended its position by claiming that Article 50 can be triggered by using the “Crown’s prerogative”. This residual instrument of royal power, which can now legitimate a ministerial executive decision to break international treaties, was said to apply since a repeal of legislation that brought Britain into the EU (the 1972 European Communities Act) would fall within its remit. While the royal prerogative is certainly an element of Britain’s unwritten constitution, and therefore part of what Article 50 deems withdrawal in accordance with the state’s own “constitutional requirements”, the court’s judgement was unanimously in favour of Miller. The High Court ruled that an act of parliament would be needed to trigger Article 50.

The High Court’s judgement was inter alia grounded on the effect leaving the EU would have on individual citizens. EU-derived rights of citizens could not be stripped away with an executive decision, and without legislation from parliament, since it would impact upon existing domestic legal protections. The Conservative proposal to transfer of all EU law, and therefore all directives pertaining to rights, into primary legislation might appear to address this issue. Yet the ‘great repeal bill’s’ migration of EU law at the point of Brexit cannot guarantee a lossless transfer. For instance, citizens in Britain would be deprived access to the European Union Court of Justice. Moreover, incorporation into domestic law can be fleeting if certain provisions for repeal are added (e.g. a Henry VIII clause).

Renouncing citizenship rights

The fallout of the High Court’s decision on 3 November 2016 was venomous. The following morning The Daily Mail’s headline read “enemies of the people” beneath a picture of the three judges. The claimant, Gina Miller, was viewed as seeking to derail Brexit by the backdoor. Twitter lit up with calls for her murder. The emphasis on the legality of Brexit being the prime and sole concern of the High Court was treated with suspicion. Gina Miller reiterated the High Court’s point, stating that “this case was about process not politics”. Slightly departing from this neat separation, she also argued that her actions were in service of those who wanted to “take back control”, as the case aimed to place parliamentary sovereignty at the centre of decision-making.

Alexis de Tocqueville’s diagnosis of the threats facing democracy is perhaps debatable and anachronistic if transposed to Brexit Britain. However, variations on his perceived threats to democracy have been, rightly or wrongly, mobilised in public discourse in the aftermath of the High Court decision. Tocqueville saw the creation of interchangeable citizens through political equality emerge in tandem with the legal regulation of democratic expression. While essential for democracy, he saw that this might also be its downfall since the possibility for individual opinion to break free from the prescribed sites, times and processes of political engagement becomes dampened. An effervescence of opinion may surface during periodic voting (in our context a referendum on EU membership), but this quickly dissipates as citizens have their organised spontaneity subsumed under impenetrable and distanced decision-making processes.

Desire for immediate withdrawal from Europe, whatever the cost, is an active and unprecedented process of rejecting rights.

Alongside the threat of “administrative despotism” wrought by the generation of servile citizens, Tocqueville saw democracy as haunted by a “tyranny of the majority” whose disregard for the rule of law could override both the voices of dissenting individuals and the legal institutions that uphold liberal democracies. Incensed Brexiteers find that the rule of law has become a regulative process to maintain the status quo and keep the wishes of ‘the people’ unfulfilled. Reacting to this alarmism, the opposing side claims that the wildfire Brexit populism is chipping away at the safeguards of liberal democracy.

The dissenting voices of citizens against the High Court ruling, which fills social media and gains supposed representation through the tabloids, exceed being framed as either democracy being overridden by legal bureaucracies or populism overriding liberal democracy. From 5 to 8 December 2016, the Supreme Court heard the government’s appeal against the High Court ruling. Regardless of the Supreme Court’s ruling in January 2017, which will decide whether withdrawal from the EU requires binding legislation from parliament, the dissenting voices against parliamentary sovereignty exhibit more than what Miller implies to be a contradictory expression of political self-harm. Desire for immediate withdrawal from Europe, whatever the cost, is an active and unprecedented process of rejecting rights.

Political figures of all stripes propagate the adage that globalisation has not benefited the ‘working people’, and claim Brexit as the response. Renouncing the role of parliamentary sovereignty to act on behalf of citizens for scrutinising the terms of EU disengagement parallels this process. The hateful bile spewed on the High Court ruling testifies to a growing feeling of disenfranchisement from the national structures of political representation and legality.

Denying human rights

The opening remarks by the judges in the High Court made explicit that they are dealing with ‘a question of pure law’. This view was repeated in the Supreme Court when, in December 2016, the government appealed against the ruling. But when stepping digitally and physically outside these judicial sites it is much harder to keep law and politics separate.

The claimant, Miller, felt this politicisation of the rule of law. She received death threats by members of the public. Racist tweets called on her to be ‘deported’. In an interview with the New Statesman, Miller recounts how “people say things like, ‘she is black and therefore a primate, so we should hunt her down’”. When going against the tide of some Brexiteers’ desire for a hasty withdrawal, the perpetual immigrant or newly arrived find themselves encountering and countering the racist underpinnings of Brexit. While the growth of racism after the referendum in 2016 has been well documented, what are the implications of Brexit for the rights of the ever-expansive political category of the immigrant, whose status ranges from full citizen to refugee?

What are the implications of Brexit for the rights of the ever-expansive political category of the immigrant, whose status ranges from full citizen to refugee?

The act of leaving the EU will not directly affect the formal existence of domestic anti-discrimination legislation. In addition, Britain’s incorporation of the ECHR through primary legislation, via the 1998 Human Rights Act, can remain applicable in domestic courts. The High Court ruling might therefore appear to have little to do with rights emanating from European institutions that are not conditional on EU membership. Yet there are potential implications of Miller for Human Rights in the UK.

According to Harmish Mehta of University College London, the case can be utilised as precedence for contesting the very unlikely scenario of the royal prerogative being used to instigate withdrawal from the ECHR. Whether this comes to fruition or not, the result of Miller and government pessimism about their appeal to the Supreme Court has already helped postpone the Conservative agenda to repeal the Human Rights Act. At first glance, the legal situation of ‘immigrant’ appears unchanged for the near future.

The political aftermath of Miller is, however, more consequential. Sections of the tabloid press and social media galvanised notions of ‘the people’ and ‘the law’ at loggerheads. This frame for conceptualising the rights of citizens against overbearing legal frameworks was an animating force behind the now postponed Conservative movement to scrap the Human Rights Act, as it relied on the momentum of taking back ‘control’. An exchange between William David Trimble and Sir Oliver Heald, the UK minster for human rights, in the human rights select committee on the 23 November 2016 highlights the continuing traction of this perspective. It was argued that the ‘great repeal bill’ could take place within a “context” of the currently undefined British Bill of Rights (a proposed replacement for the Human Rights Act).

The difference between the Human Rights Act and the British Bill of Rights is more than a semantic issue.

The difference between the Human Rights Act and the British Bill of Rights (emphasis added) is more than a semantic issue. One of the sticking points of the former was Article 8 – the right to a private and family life – which it was argued could be used by migrants to appeal against Home Office integration strategies and court judgements. It remains to be seen how this article will be incorporated into a potential British Bill of Rights. Moreover, the March 2016 Council of Europe memorandum on human rights in Britain noted that there was no time limit on migrant detention in legislation or “automatic right of migrant detainees to have detention reviewed by a court”. UK courts have long found detainees subjected to “inhuman or degrading treatment”, in violation of the Human Rights Act and Article 3 of the ECHR.

These enduring issues are now going to be debated in a context where politics and law are becoming increasingly viewed as synonymous by Brexiteers who advocate the ‘will of the people’. A successful British Bill of Rights may mark the culmination of this in ways that will lead to further human rights abuses. Existing provisions on human rights will necessarily be incorporated, but it may be up for debate as the explicitly national context of the proposed written constitution allows for an expression of the ‘British peoples’’ values (e.g. anti-immigration) to be potentially incorporated.

The future of rights after Brexit

The rights of individuals will be the major juridical and political issue during Brexit negotiations and long after Britain’s separation from the EU. Leaving the EU offers an opportunity to redraw the boundaries of inclusion and exclusion, and political will is tilting towards the latter. The substance of rights is also being transformed. The negative response to the High Court ruling on the use of the royal prerogative showed how renouncing certain rights of representation marks the continuing protest against established national democratic conventions.

The racism that was organised through numerous responses to the High Court ruling adds to the litany of events that indirectly bears upon the waning culture of human rights and the ever-increasing concern around non-White citizens. If legislation is eventually required to consolidate EU-derived and domestic rights in the form of a British Bill of Rights (or other written constitution), then vigilance is needed to see where provisions for the non-national fits in. How rights of non-nationals are to be envisaged for a ‘post-EU’ Britain requires scrutiny in tandem with a deeper understanding of why citizens want less formal channels of control over the Brexit process.

Contribute to Brexit Migration Watch

It is clear that Brexit is going to have significant impacts on immigration and asylum law, policy, and the lives of immigrants in the UK. And yet if the likelihood of significant ‘implications’ is clear, the specific policy, legal and other changes remain unknown. OpenDemocracy’s new series Brexit Asylum Watch provides a space for expert analysis and reflection on the theme.

If you would like to contribute, please email the editors Lucy Mayblin (University of Warwick) or Cameron Thibos (openDemocracy) with a short pitch of up to 300 words and a two-sentence bio sketch.


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