Update following High Court ruling on 3 November 2016

On 3 November 2016, the High Court in London ruled in one of the most significant UK constitutional law cases for decades on the triggering of Article 50. The ruling did not, however, concern the result of the EU referendum. The question before the Court was:

“whether as a matter of UK constitutional law, the Government is entitled to give notice of a decision to the EU under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament.”

(Case summary, R(Miller) v. Secretary of State for Exiting the European Union)

In other words, is this a decision that the PM and her government can make alone without involving Parliament?

All parties to the case, including the Government, accepted that the Court had jurisdiction or the right to rule in this case.

In addition, the Government conceded that, once Article 50 is triggered, this notification cannot be withdrawn, and that it is also not possible to give conditional notice under Article 50 i.e. a notice that is qualified by stating that it is subject to parliamentary approval of the withdrawal agreement that is made during the Brexit negotiations.

These are key points, because this means that, once Article 50 is triggered, statutory rights of UK citizens under the European Communities Act 1972 will inevitably be lost once the Art 50 withdrawal process is completed.

The Court ruled that the Government does not have power under the royal prerogative to give notice under Article 50 for the UK to withdraw from the EU. This was because:

  1. The most fundamental rule of the UK’s constitution is parliamentary sovereignty and that what Parliament does it (and only it) can undo.
  2. A key aspect of this is that the Government cannot use the royal prerogative to override parliamentary legislation.
  3. The royal prerogative can be used to enter into and withdraw from international treaties and for international relations generally but that is because this does not have an effect in domestic law.
  4. In this case, however, the Government accepted and conceded that if Article 50 is triggered, this will affect domestic law (and indeed the statutory rights of UK citizens under domestic law).
  5. To overcome this problem of using the royal prerogative in a situation which would have an effect in domestic law, the Government argued that the European Communities Act 1972 should be interpreted so as to mean that Parliament, when it enacted it, intended that the royal prerogative could be used to withdraw from the EU Treaties.
  6. But the Court did not accept that argument and said that there was nothing in the Act to support it. It considered that not only was the Government’s argument contrary to the 1972 Act but also to the fundamental principles of (1) parliamentary sovereignty and (2) that the Government cannot use the royal prerogative to change domestic law.

This is a landmark ruling, and an unequivocal judgment. However, it is not the end of the story, as the Government has been given the right to appeal and to bring a “leapfrog” appeal to the Supreme Court, or an appeal to the Supreme Court without having to go through the Court of Appeal first. This will be heard in between 5-8 December with judgment likely in January. All 11 Supreme Court judges will hear the appeal.

The tabloid press has been criticised for the personal attacks made on the judges the day after the judgment with front page headlines such as these:

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The Lord Chancellor, whose job it is to uphold the independence of the judiciary, has been criticised by the Bar Council for failing properly to condemn the attacks.

In the meantime, both the Welsh and Scottish governments have been given leave to intervene, and the Scottish government is also arguing that the devolved administrations should be consulted prior to triggering Article 50. In addition, a case before the Northern Ireland courts, challenging the Government’s right to invoke Article 50 under the royal prerogative based on Northern Ireland law arguments, will also have a hearing in the Supreme Court.