Brexit in the High Court

The High Court in London has now heard arguments in the case of Miller and Santos v Secretary of State for Exiting the European Union. Full transcripts for each of the three days over which the court heard arguments are available here. However, for those with insufficient time (or energy) to read through over 550 pages of legal argument, Robert Craig on the Constitutional Law Association Blog has provided a helpful report of proceedings for each day, summarising the arguments made and the interventions from the bench. They can be found here, here, and here

Prior to the hearing, Skeleton Arguments were released for one of the interested parties and the Government and can be read in full here and here.

In short, the claimants argue that the Government do not have the power to decide to leave the EU or to notify the European Commission of this decision. This is because:

  1. The residual prerogative power which the Government intends to exercise has been superseded by primary legislation, namely the European Communities Act 1972, the European Union Act 2011, the devolution statutes, the Acts of Union, and the Constitutional Reform and Governance Act 2010;
  2. In the alternative, if prerogative power does exist, this power cannot be exercised to modify or remove fundamental rights. Leaving the EU will modify or remove various fundamental rights. The Government cannot use the prerogative power to decide to leave the EU or to notify the European Council of this decision in accordance with Article 50 because the inevitable result of triggering Article 50 is withdrawal from the EU. The UK withdrawing from the EU would remove or modify the fundamental rights of those living in the UK;
  3. In any case, use of the prerogative would be an abuse of power as it would undermine Parliamentary sovereignty and the will of Parliament, as expressed in primary legislation.

In response, the Government argues that:

  1. The decision to withdraw from the EU has already been taken. The Government is entitled to exercise its prerogative power to make and withdraw international treaties to implement this decision. Parliament has not curtailed the use of the prerogative in any of the legislation relied upon by the claimant;
  2. Triggering Article 50 (i.e. notifying the European Commission of the decision to withdraw from the EU) in itself would not amend any common law or statutory rights. Any changes will be a matter for negotiations, which will be subject to Parliamentary scrutiny, and implementation by primary legislation;
  3. The premise of the EU Referendum Act 2015 was that the outcome of the referendum would be implemented by the Government. The legislation was passed by Parliament on this clear understanding;
  4. The relief sought (a declaration that it would be unlawful for Government to issue a notification under Art 50 without an Act of Parliament authorising such notification) is constitutionally impermissible as it would trespass on proceedings in Parliament.

The Government also suggested in their Skeleton Argument that, just as the decision to join the EU was non-justiciable (see Blackburn v Attorney General [1971] 1 WLR 1037 at 1040), the decision to leave the EU is non-justiciable. However, it appears to have been conceded at the hearing that, as the court is being asked to adjudicate on the narrow question of the existence or otherwise of the prerogative power, rather than the merits of the decision to leave the EU, the matter is justiciable (See pages 207 to 211 of the full transcript for 17 October 2016). Although the Government accepts that the matter is justiciable, they maintain that it would be constitutionally inappropriate for the court to grant the remedy sought.

Whilst all parties agree that the court cannot decide whether the UK should withdraw from the EU, it can decide who should make this decision; the Government or Parliament. I confess that this distinction was lost on me when, in an earlier blog post following the vote, I suggested the courts would be unlikely to accept an invitation to adjudicate on the matter.

Mark Elliot, Professor of Public Law at the University of Cambridge, whilst in agreement with the legal position espoused by the Government (see here), is critical of the way in which this position has been presented to the court (see here) and, with Alison Young of the University of Oxford, questions the Government’s position that the decision to leave the EU has already been taken (see here). Piet Eeckhout, Professor of European Law at UCL, provides further analysis of whether the decision has been taken from an external and EU law perspective here.

Needless to say, the case has attracted a great deal of interest from lawyers, constitutional academics, the press and the general public. It is unclear when the High Court’s much anticipated decision will be available. However, whatever the decision, it is unlikely to be the end of the matter. Whichever side is unsuccessful will most likely appeal. It is anticipated that there will be a ‘leap-frog’ appeal to the Supreme Court and that the case will be heard there before the end of the year. This is to ensure that, by the time Article 50 is triggered in March 2017, it is determined once and for all whether primary legislation from Parliament is necessary.