Government loses Brexit case

Yesterday the High Court issued judgement in R (on the application of Miller & Dos Santos v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) and held that “the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to the TEU for the United Kingdom to withdraw from the European Union” [111]. The necessary implication of this is that Parliament must pass legislation conferring this power upon the Government.  

The court roundly rejected the submissions on behalf of the Government describing one such submissions as “divorced from reality” [66] (this was said in relation to the Government’s submission that rights enjoyed by British citizens in other member states of the EU are not the product of the European Communities Act 1972).

The court agreed with the claimants that the European Communities Act 1972 (“ECA 1972”) abrogated the prerogative power to withdraw from the EU:

“The wide and profound extent of the legal changes in domestic law created by the ECA 1972 makes it especially unlikely that Parliament intended to leave their continued existence in the hands of the Crown through exercise of its prerogative powers” [87].

In the courts view the Government’s submission that, due to the absence of express language, it cannot be inferred that, when enacting the ECA 1972, Parliament intended to remove the Crown’s prerogative power:

“...gave no value to the usual constitutional principal that, unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers” [84].  

The court described the Secretary of State’s submission on this point as “flawed at this very basic level” [85]. This conclusion was reinforced by the constitutional principles that: the Crown cannot use its prerogative to alter domestic law; and the Crown’s prerogative power operates only on the international plane. The latter principle is the reason that:

“...the courts accept that this is a field of action left to the Crown and recognise the strength of the understanding that it is not readily to be inferred that Parliament intended to interfere with it” [89].

However this presumption that the courts will not interfere with the exercise of the Crown’s prerogative in the conduct of international affairs:

 “...is substantially undermined in a case... where the Secretary of State is maintaining that he can through the exercise of the Crown’s prerogative bring about major changes in domestic law” [89].

The litigation proceeded on the assumption that notice under Article 50 cannot be withdrawn or conditional [10]. As such, the unavoidable consequence of triggering Article 50, due to the terms of Article 50(3), is that the EU Treaties will cease to apply in the UK two years after notification.

It was accepted by both parties that this would strip section 2(1) of the ECA 1972, which gives EU law legal effect in the UK, of any practical effect [51]. As such, triggering Article 50 would lead to a change in domestic law. The Government cannot unilaterally change domestic law. Only Parliament can do this.  

However, some have questioned the assumption that notice under Article 50 cannot be withdrawn. Aurel Sari, Senior Lecturer in Law at the University of Exeter, suggest that this is not the case and that notification can in fact be revoked at any point prior to the UK’s exit from the EU. Similarly, John Finnis, Professor of Law Emeritus at the University of Oxford, describes this assumption as “make-believe”.

 

A hearing has already been fixed at the Supreme Court for the Government’s appeal against the judgement of the High Court. As such, this will not be the final word on the matter. It remains to be seen whether the Supreme Court will accept the assumption that notification under Article 50 is irrevocable. If his is not the case, the High Court's reasoning may be unsustainable.