Brexit Judgment – Louise Jones summaries the decision handed down earlier today


Louise Jones summaries the decision handed down this morning in Miller v Secretary of State for Exiting the European Union: the Government cannot use prerogative powers to notify under Art.50.

In an extraordinary twist in the latest dramatic development of 2016, the Divisional Court (the Lord Chief Justice, the Master of the Rolls and Sales LJ) has found in favour of the claimants in Miller & other v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), judgment handed down on 3 November 2016. The Crown, acting through the executive government, is not entitled to use its prerogative powers to give notice under Article 50 of the Treaty on European Union for the United Kingdom to cease to be a member of the European Union.

The judgment is rooted in – and serves as a useful reminder of – the core principles of constitutional law.

  • The judgment is rooted in – and serves as a useful reminder of – the core principles of constitutional law.
  • While the UK does not have a constitution to be found entirely in a written document, the UK is a constitutional democracy framed by legal rules and subject to the rule of law (§§18-19).
  • The most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of Parliament is supreme (§§20-23).
  • Prerogative powers constitute the residue of legal authority left in the hands of the Crown. The Crown cannot change domestic law by any exercise of its prerogative powers (§§24-29).
  • Generally, the conduct of international relations and the making and unmaking of treaties on behalf of the UK are regarded as matters for the Crown in the exercise of its prerogative powers (§§30-31).
  • The European Communities Act 1972 (“the ECA 1972”) was described by Laws LJ in Thoburn v Sunderland City Council [2003] QB 151 (DC) as being a constitutional statute of such importance in our legal system that it is not subject to the usual wide principle of implied repeal by subsequent legislation.  It could only be repealed or amended by express language in a subsequent statute or by necessary implication from the provisions of such a statute (§§43-44).

The question before the Court involved both rights and obligations arising from an international plane (by membership of the EU) and in the context of domestic law (§34).

The Government accepted – and indeed positively contended – that if notice is given under Article 50, it will inevitably have the effect of changing domestic law.

The Court rejected the central submission made on behalf of the Government that in the enactment of the ECA 1972, Parliament intended the Crown to retain its prerogative power to effect a withdrawal from what are now the EU Treaties, thereby intending that the Crown should have the power to choose whether EU law should continue to have effect in the domestic law of the UK or not.

The Court found this submission to be contrary to the language used by Parliament in the ECA 1972, and contrary to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers. The Court expressly accepted the claimants’ submission that the ECA 1972 confers no authority to change domestic law and nullify rights under the law: absent such authority from the ECA 1972 or other statutes, the Crown cannot through the exercise of its prerogative powers alter the domestic law of the United Kingdom.

It was not contended by the Government that the European Union Referendum Act 2015 supplied a statutory power for the Crown to give notice under Article 50. Nonetheless, the Court observed that Parliament must have appreciated that the referendum was intended only to be advisory: the result of a vote in the referendum in favour of leaving the EU would inevitably leave for future decision many important questions relating ot the legal implementation of withdrawal from the EU.

The Court was at pains to emphasize that it was dealing with a pure question of law and not the merits or otherwise of leaving the EU. Nonetheless this is a judgment of huge significance leaving the Government with the huge political dilemma: to try to legislate now or to appeal against this decision. It is being reported that the Court has granted a leapfrog certificate certifying that the case can go straight to the Supreme Court on appeal, and dates have been set aside for it to be heard by the Supreme Court in December.

Click here to read the judgment in full and here for a summary.

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