brexit-article-50

BREXIT'AND'ART'50'TEU:'A'CONSTITUTIONALIST'READING''''''''''''''''''''P'EECKHOUT'AND'E'FRANTZIOU'
movement cases may come before the courts of a Member State, even if they are concerned
with restrictions imposed by a different Member State. The category (ii) rights are therefore
just as much part of the rights protected by the ECA as the other categories.
This is important because it answers the claim that, even if the internal market and free
movement were not part of the post-Brexit arrangements, Parliament could nevertheless
maintain the relevant rights insofar as they apply within the United Kingdom. For example,
Parliament could allow EU citizens to continue to establish themselves in the UK. However,
it could not maintain the rights of UK citizens and residents in other Member States, because
it would then need to act extra-territorially. Those rights will be lost unless they are part of
the post-Brexit arrangements with the EU, which Parliament does not control.
The conclusion must be that the rights conferred by EU law are statutory rights, some of
which (the "fundamental" ones) are not contingent or ambulatory in the sense that Parliament
has expressly enacted them in the ECA. In fact, as Laws LJ put it in Thoburn v Sunderland
City Council: ‘It may be there has never been a statute having such profound effects on so
many dimensions of our daily lives.’ 141 Withdrawal from the EU means that Parliament cannot
re-enact a substantial number of those rights in the absence of new arrangements with the
EU, which Parliament does not control. Some of the rights will inevitably be lost, because
they are dependent on full membership.
D. A Normative Approach
Our third comment on the Miller litigation focuses on the wider normative questions
associated with the role of Government and Parliament in the Article 50 process. Most of the
academic debate on Miller obscures such questions rather than attempting to answer them.
The picture painted is one of a series of legal technicalities, embedded in judicial precedent
and complex legislative language. However, the question about constitutional authority to
withdraw from (as opposed to acceding to) a supranational organisation with the kind of
dimensions the EU has, is wholly unprecedented. The Royal Prerogative is clearly strongest
in foreign affairs, but for the United Kingdom there can hardly be a bigger question of foreign
affairs than EU withdrawal. Indeed, it is in very large measure not a question of "foreign"
affairs at all, for reasons which are obvious and which we have attempted to articulate, at
141 [2003] QB 151 (DC); para 62. See also: R (Buckinghamshire County Council) v Secretary of State
for Transport [2014] UKSC 3; Miller (n 3) paras 92ff.
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