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Article 50 Court Ruling

Thursday 3 November 2016

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Article 50 Court Ruling

  1. At 10 a.m. this morning the High Court handed down judgment in one of the most important constitutional case of this generation – Miller v Secretary of State for Exiting the EU [2016] EWHC 2768. It held, contrary to the Government’s submissions, that the Government could not use the royal prerogative to give notice under Article 50 TEU.
  2. The key points of the judgment can be summarised as follows:
    1. It is well-settled and was common ground that the prerogative does not involve any power to prescribe or alter domestic law [24]-[29]. In other words, the prerogative cannot confer rights on individuals or deprive them of rights without the intervention of Parliament [32].
    2. The Crown’s prerogative power to conduct international relations and make (and unmake) treaties is outside the purview of the courts “precisely because the Crown cannot, in ordinary circumstances, alter domestic law by using such power to make or unmake a treaty” – since doing so normally only has legal effect on the international plane [32]-[33].
    3. However, EU law is unique. By enacting the ECA 1972, Parliament agreed that EU law would have effect in domestic law and give rise to rights and obligations which are directly enforceable [20], [41]-[42]. It is no answer to say that some of those rights might be preserved under primary legislation in the future. Further not all existing rights could be preserved [62]-[66].
    4. The ECA 1972 was intended by Parliament to introduce EU law into domestic law and create certain rights in such a way that this could not be undone by exercise of Crown prerogative power. As a result, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence different types of the EU law rights depend and therefore the Crown has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU [92][94].
    5. Further, the Crown could not change domestic law and nullify rights under the law unless Parliament had conferred upon the Crown authority to do so either expressly or by necessary implication by an Act of Parliament. There was no such authority and this was a further basis upon which to conclude that the Crown cannot give notice under Article 50 [95]-[96].
    6. It was unnecessary to determine the other arguments put forward by others, including relating to the Act of Union 1707, devolution and other statutes [102].
    7. A declaration would be granted [109]-[111].
  3. It remains to be seen whether the Government will appeal. The Supreme Court has indicated that it will sit with its maximum of 11 justices, probably in early December.
  4. The judgment is available here.
  5. Interesting times.

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