Category Archives: Court Challenges

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In addition, the Government conceded that, once Article 50 is triggered, this notification cannot be withdrawn, and that it is also not possible to give conditional notice under Article 50 i.e. a notice that is qualified by stating that it is subject to parliamentary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

Supreme Court Hearing (5-8 December 2016)

Last week, the appeal hearing in the Article 50 case, R (Miller and another) v. Secretary of State for Exiting the European Union took place over the course of four days (5-8 December 2016). The Government had been given the right to appeal the judgment of the High Court (link to judgment)and to bring a “leapfrog” appeal to the Supreme Court.

All 11 Supreme Court justices sat and heard submissions from the Government (the appellant), and for the respondents in the appeal, Gina Miller and Deir Tozetti Dos Santos, as well as two interested parties and five interveners.

The issue before the Supreme Court was the following:

“Does the Government have power to give notice pursuant to Article 50 of the Treaty on European Union of the United Kingdom’s intention to withdraw from the European Union, without an Act of Parliament providing prior authorisation to do so?”

The main points of the Government’s case appeared to be that:

  • the exercise of the prerogative to enter into and withdraw from international treaties and for international relations was in principle “untrammelled” or unrestricted;
  • the prerogative could be used to change domestic legislation;
  • Parliament, when it enacted the 1972 European Communities Act, was merely facilitating the UK’s membership of the EEC, in the event that the Government, in the exercise of its prerogative, took the decision to take the UK into the EEC (i.e. the decision was the Government’s not Parliament’s); and Parliament had somehow, by its silence on the matter, actually exercised its sovereignty and passively consented to the prerogative being used to take away the EU rights of UK citizens legislated for by Parliament.

In response, for the main Respondent, Gina Miller, Lord Pannick argued that: –

  • the 2015 Referendum Act did not give ministers the power under the prerogative to trigger Article 50;
  • the prerogative cannot be used to remove statutory rights and certainly cannot be used to change the UK constitution;
  • the Government must demonstrate that Parliament expressly handed over powers to remove statutory rights;
  • Parliament did not intend that the scheme set up by the 1972 European Communities Act could swept away by use of the prerogative;
  • there are different ways in which the prerogative can be limited – one limit is that there is no prerogative power to remove statutory rights, and this is the case here;
  • none of the other EU related acts over the last forty years gave ministers the power under the prerogative to trigger Article 50; and
  • finally, as regards Parliament’s role, only an Act of Parliament could take away EU rights linked to EU membership created in the last four decades.

Both the Lord Advocate (for the Scottish Government) and the Counsel General for Wales (for the Welsh Government) had been given leave to intervene on devolution issues. The Scottish Government argued that Article 50 could only be invoked through an Act of Parliament and that Act had to be preceded by a legislative consent order in the Scottish Parliament, while the Counsel General for Wales argued that the devolved administrations should be consulted prior to invoking Article 50. In addition, references from two Northern Irish cases, relating to devolution issues and the argument that the particular circumstances of Northern Ireland should be recognised and taken into account, were heard.

The Court’s judgment is expected in the New Year. The Supreme Court will issue an alert prior to its publication. Transcripts of the hearing, and information concerning the arguments of the parliament and the judgment, can be found here.

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

Appellant (Defendant in the High Court)
  • Secretary of State for Exiting the European Union
Respondents (Claimants in the High Court)
  • Deir Tozetti Dos Santos, a British hairdresser, whose claim has joined Gina Miller’s lead claim and he is represented by Edwin Coe LLP and Dominic Chambers QC.
Interested Parties
  • The People’s Challenge: There is a further claim made by several individuals including father and son Graeme and Rob Pigney, British citizens living in France and others living in England, Northern Ireland, Gibraltar and Wales all represented by law firm Bindmans and Helen Mountfield QC. They are self funding through a Crowdjustice crowdfunding campaign.  They have already reached their initial fund raising target enabling them to make written submissions on behalf of all 65 million UK citizens. The individuals involved have a blog and facebook account.   On 28th September, People’s Challenge won the right to publish secret Government defence in their case to maintain the royal prerogative. Click here for further details.
  • AB, KK, PR and children.
Active Interveners

UPDATE: The High Court Judgment on the Article 50 challenge was handed down at 10am, 3rd November 2016 in Court Room 4.  The Government lost the case and appealed.  The appeal went direct to the Supreme Court and was heard between 5-8 December with judgment likely in January. All 11 Supreme Court judges heard the appeal.