The UK High Court has held unanimously that the Secretary of State for Exiting the European Union does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty of European Union for the United Kingdom to withdraw from the European Union.
The case arose following the EU Referendum held in the United Kingdom on 23 June, also known as ‘Brexit’, which resulted in an overall vote to leave the EU – a result accepted by the Prime Minister. To start the process to leave the EU, it was left to the new Prime Minister, Teresa May, to decide when to trigger Article 50 – the process by which withdrawal is to be given effect.
Campaigner Gina Miller, along with other claimants, sought permission to bring an action for judicial review of the UK Government’s intention to use the Royal Prerogative to invoke Article 50, without a vote and full deliberative debate on the implications in Parliament. The Secretary of State had argued that, pursuant to prerogative powers, it had a unilateral right to trigger Article 50, meaning consultation with elected Members of Parliament was not necessary. In contrast, the claimants argued that prerogative powers cannot be used to override existing acts of Parliament, in this case the European Communities Act 1972 (EC Act) which gives effect to EU law in the UK. It is a constitutional principle that acts of Parliament cannot be changed without the consent of Parliament. The legal question to be determined by the High Court was then how a decision to leave the EU can, in law, validly be taken and notified. Thus, whether parliamentary authority was required before Article 50 could be triggered.
In response, the Divisional Court rejected the Secretary of State’s submission and held in favour of the so-called ‘People’s Challenge’. According to the Court, there was nothing in the text of the EC Act either expressly or impliedly supporting the UK Government in using its Executive prerogative powers to give notice of its intention to withdraw from the EU under Article 50, without referencing the Parliament. In its understanding, giving notice under Article 50 (2) will inevitably result in the removal of some fundamental rights under EU law that are currently enjoyed by British citizens, enshrined in domestic law by Parliament in the EC Act. In light of the principle of Parliamentary sovereignty, which has a long standing constitutional tradition, the Court found that the UK’s constitutional requirements do not permit the Crown to change domestic law by removing those fundamental rights through exercise of its prerogative powers; only Parliament could do so.
A 4 day ‘leapfrog appeal’ will be heard in the UK Supreme Court, starting 5 December.
In a contrary judgement, only days before the judgement of the English High Court, the High Court in Northern Ireland rejected a separate challenge to the legality of the UK’s departure proceedings from the EU. This ruling was a culmination of two separate proceedings: one brought by a cross-party group of politicians and the other by campaigner Raymond McCord. They argued that the Good Friday Agreement gave Northern Ireland sovereignty over its constitutional future and therefore veto over leaving the EU. They also argued that Article 50 could only be invoked after a vote in Parliament.
To avoid duplication of proceedings before the English High Court, this judgement was confined to the impact of Northern Ireland constitutional provisions in respect of notice under Article 50. In dismissing the application, the Court stated that the Good Friday Agreement was only constitutionally relevant in the particular context of whether Northern Ireland should remain as part of the UK or unite with Ireland. Without prejudice to the case before the English courts, the Court was also of the view that the prerogative power is still operative and can be used for the purpose of the Executive giving Article 50 notification.
While this case is also under appeal, at the time of writing, the Attorney General had issued a notice to ‘leapfrog’ the case of the Stormont politicians to the Supreme Court, which would split the proceedings. This is on the basis that the points “are best pleaded” in this piece of litigation.
Click here for the full judgement in R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).
Click here for the judgement in McCord, Re Judicial Review [2016] NIQB 85.