Ewan Smith: What Would Happen if the Government Unlawfully Issued an Article 50 Notification without Parliamentary Approval?

In “Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role” Nick Barber, Jeff King and Tom Hickman argued that it is Parliament, and not the government, who get to decide whether to trigger a notification under Article 50 of the Treaty of the European Union. I agree with them.

Barber, King and Hickman base the argument on general grounds, drawing on the Case of Proclamations. However, it is important to consider the specialised rules that apply to the government’s power to conclude treaties. It is also important to think about the consequences of unconstitutional action, both as a matter of domestic and international law. It is not obvious that a British court could prevent the government from issuing a notification, nor is it obvious that an unconstitutional notification would be ineffective in international law. This post will explain these complications; then explain why an English court can issue a declaration to prevent the government from making a notification without Parliamentary approval; and why such a declaration would void a purported notification under Article 50.

As Barber, King, and Hickman argue, the government cannot change the law by the prerogative. This means the government cannot change the law by treaty. As Lord Herschell put it in Walker v. Baird ‘[t]he Crown, by treaty with a foreign power [cannot] acquire new rights against its subjects.’ However, the power to conclude treaties is subject to rules that do not apply to all prerogative powers. Before CCSU v. Minister for the Civil Service, we might have said that the power to conclude treaties was not justiciable. The courts remain particularly slow to interfere with the exercise of foreign affairs powers. This may affect the availability of relief in Treaty cases. Lord Denning explained this rule in Blackburn v. Attorney General:

“The treaty-making power of this country rests not in the courts, but in the Crown; that is, Her Majesty acting upon the advice of her Ministers. When her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as [the EEC Treaty], they … exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned in these courts.”

This rule can be traced back to Blad’s Case, decided about half a century after the Case of Proclamations. It finds recent expression in cases that will be familiar to the Leave campaign. In cases like Blackburn, R (Smedley) v. HM Treasury and R (Rees Mogg) v. Foreign Secretary, opponents of closer relations with the European Union challenged the government’s ratification of EU treaties, using arguments which superficially appear to be similar to Barber, King and Hickman’s.

For example, in R (Rees Mogg) v. Foreign Secretary, William Rees Mogg sought a declaration that the ratification of the Maastricht Treaty would be unlawful. Lord Pannick made two arguments on his behalf. By ratifying the Social Chapter, the Government would be altering EU law. This would alter “the fundamental law of the United Kingdom” and that would be unlawful, because “it is axiomatic that Parliament alone can change the law.” Lord Pannick also argued that, by enacting section 2(1) of the European Communities Act 1972 Parliament “must have intended to curtail the prerogative power to amend or add to the E.E.C. Treaty.”

Lord Justice Lloyd, for the Court of Appeal, responded to the first argument by saying it was “constitutional solecism” to talk of parliamentary ratification of a treaty. He responded to the second argument by saying “when Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms.” If Rees Mogg were decided correctly on this point, then it might prevent us from reading a fetter on the government’s treaty power into the ECA.

However, when we look further into the treaty cases, we can see that Rees Mogg was not decided correctly on this point. Lord Justice Lloyd’s conclusion ignores binding authority. In Laker v. Board of Trade (1976) Sir Freddie Laker planned to operate a low-fares airline from London to New York. The sector was regulated by the Civil Aviation Act 1971 and airlines offering that route needed approval under a treaty between Britain and the United States. The UK government duly approved Laker’s licenses, but following the OPEC crisis and the 1974 General Election, its policy changed to favour British Airways. The Civil Aviation Authority, the statutory body charged with licensing, sided with Laker and confirmed the license. Nevertheless, the government ignored the statutory scheme, and notified the United States that it would withdraw Laker’s designation as an approved airline under the treaty. This put an end to the venture. Laker sought a declaration, among other grounds, that the government’s notification under the Treaty was unlawful.

The Court of Appeal held that the government’s attempt to circumvent the statutory licensing scheme was beyond its power. It then had to decide whether the constitutional allocation of the treaty-making prerogative to the government meant the court could not grant relief in the case. Like the ECA, the statute in question – the Civil Aviation Act – contained no express limitations on the treaty making power. The Court sided with Parliament, and issued a declaration that “by reason of the terms of the Civil Aviation Act 1971 the Department of Trade was not entitled … to withdraw the designation[pursuant] to the Bermuda Agreement.”

Lord Denning gave customarily clear reasons for the decision, echoed by Lord Justices Roskill and Lawton.

“Can [the Minister] displace the statute by invoking a prerogative? If he could do this, it would mean that, by a side wind, Laker Airways Ltd. would be deprived of the protection which the statute affords them. … The Secretary of State could do it of his own head—by withdrawing the designation without a word to anyone. To my mind such a procedure was never contemplated by the statute… And it is well established law that, if a discretionary power is exercised under the influence of a misdirection, it is not properly exercised, and the court can say so.”

Laker gives us good reason to believe that when the government uses a treaty power to withdraw rights incorporated by statute, the court can and should issue a declaration that this is unlawful. However, a declaration would be of little use if an unlawful notification were still effective in EU law and international law. In international law, it is the executive and not the legislature that represents the state in concluding and denouncing treaties. Unlawful, and even unconstitutional acts of the executive can be legally binding at international law under certain circumstances. The principle is set out in the ILC Articles on State Responsibility Article 7 and is discussed in cases such asEastern Greenland (Denmark v. Norway) case (1933) and the Genocide (Yugoslavia v. Bosnia and Herzegovina, Preliminary Objections) case (1996). The rule promotes certainty in international agreements.

Nevertheless, there are at least two grounds two grounds upon which an English court could invalidate a purported Article 50 notification. The most compelling reason, mentioned by Barber, King and Hickman, draws on the terms of the article itself. Notifications must be issued “in accordance with [the] constitutional requirements” of the State. In the Territorial Dispute (Libya v. Chad) case (1994) the ICJ said ‘one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence, [is] that of effectiveness’. Robert Kolb restates the principle more clearly: ‘if more than one interpretation is possible, the preference should be given to the one which does not have as an effect to wholly or partially deprive a term, sentence or article of any legal meaning and thus of any practical impact.’ (The Law of Treaties (Edward Elgar 2016) 154–55.) Kolb goes on to argue that every denunciation clause sets its own particular regime, and must be interpreted accordingly.

For our purposes, the most illuminating comparison is the denunciation clause in the European Convention on Human Rights (Article 58), which is not limited in the same express terms as Article 50 of the TEU. It says:

  1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice…

There is another argument, which perhaps gives this debate a constitutional significance of its own. Article 46 of the Vienna Convention, provides:

  1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
  1. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.”

By its terms, the article applies to defaults in concluding a treaty. But it may help us to understand the rules relating to defaults in withdrawing from a treaty. An unlawful Article 50 notification may only be void if it is “objectively evident” to the European Union that this was a breach of an internal law of fundamental importance. This means it is especially important not just to defend the constitutional primacy of Parliament, but also to publicise that fact as widely as possible. It is helpful to recall the legal debate that greeted Britain’s entry into the EEC. In Blackburn v. Attorney General, the claimant sought to challenge the ECA itself, along with Britain’s ratification of the EEC Treaty. Faced with the suggestion that this was an irreversible act, Lord Denning considered the constitutional procedure for withdrawal:

“If Her Majesty’s Ministers sign this treaty and Parliament enacts provisions to implement it, I do not envisage that Parliament would afterwards go back on it and try to withdraw from it. But, if Parliament should do so, then I say we will consider that event when it happens.” (Emphasis added)

This is an authoritative statement of the proper constitutional relationship between the government and Parliament when a treaty and a statute intersect. When the government signs a treaty, and Parliament incorporates it by statute, it is for Parliament to “go back on it and try to withdraw from it.” The government may be the messenger, but the author of that message is Parliament. This should already be manifest to British lawyers; it is important that it we make it manifest in Europe.

Ewan Smith, Lecturer, Hertford College, Oxford


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