Brexit – the Article 50 High Court ruling

The question the British public were asked on June 23 this year under the European Union Referendum Act 2015 was: “Should the United Kingdom remain a member of the European Union or leave the European Union?”

The procedure for leaving the European Union is governed by Article 50 of the Treaty on the European Union which states that: “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

However, following its announcement that it intended to invoke Article 50 without seeking prior approval from parliament, a number of claimants sought judicial review into whether such an approach was “in accordance with its own constitutional requirements”.

The matter proceeded to the High Court as The Queen on the application of (1) Gina Miller & (2) Deir Tozetti Dos Santos v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).

The sole question for the court to consider was whether the executive government can use the Crown’s prerogative power to give notice of withdrawal – i.e. can the Government invoke Article 50 without parliamentary approval?

Prerogative power

The Crown’s prerogative power consists of the residue of legal authority left in the hands of the government. As Parliament is sovereign under the United Kingdom’s constitution, legislation cannot be displaced by the Government through the exercise of the Crown’s prerogative power.

On 3 November 2016, the High Court published their judgment which concluded that the Government does not have power under the Crown prerogative to give the notice required under Article 50 of the Treaty on European Union for the United Kingdom to withdraw from the European Union.

It follows from the judgment that parliamentary approval for the giving of the notice is required to comply with the UK’s constitutional law.

The Legal Arguments

The claimants’ main arguments were:

1. It is a fundamental principle of the UK constitution that the Government cannot exercise prerogative law making powers unless and until Parliament has first provided authority “expressly in, or by necessary implication from, the terms of an Act of Parliament”. In relation to invoking Article 50, no such authority has been provided by Parliament or could be found in European legislation. Accordingly, by invoking Article 50 without parliamentary approval, the Government would be contravening the UK’s constitutional requirements.
2. Under the European Union Act 2015, Parliament had not given authority for notice of withdrawal under Article 50 to be provided. The referendum was merely advisory.

The claimants also argued that even if their main arguments were incorrect, and the Government had originally possessed the power to exercise the prerogative power without parliamentary approval, upon joining the European Community in 1972, such a power was relinquished through the European Communities Act 1972.

The Secretary of State argued that:

1. Parliament could choose to leave prerogative power in the hands of the Government, even if its use would result in a change to common law or statutory rights. Unless express words could be found in an Act of Parliament, Parliament could not be found to have removed such powers. No such wording existed and so the powers still existed.
2. No European legislation had the effect of restricting the prerogative power of the Government to invoke Article 50 without parliamentary approval. On the contrary, because no restriction was placed on the Government’s ability to exercise the right under the European Union (Amendment) Act 2008 and the European Union Act 2011, it was implicitly recognised that such power existed.
3. Given the likelihood that any withdrawal treaty would contain a provision requiring ratification, the treaty would in any event have to be approved by Parliament.
4. It can be implied, from the fact that the 2015 European Union Referendum Act is silent on the issue of whether legislation is required before Article 50 is invoked, that Parliament accepted that the legislation granted this power.

The Judgment

The High Court found that it was necessary to obtain parliamentary approval before Article 50 could be invoked.

The Court acknowledged the principle that the Crown has no power to alter the law of the land through the use of its prerogative powers – recognising this as a “powerful constitutional principle”.

The Court found that “the stronger the constitutional principle, the stronger the presumption that Parliament did not intend to override it”. Accordingly, express language is required to override the principle.

The Court also ruled that the burden was on the Secretary of State to prove that prerogative power existed in the first instance.

The Court found that statutes with constitutional significance such as the European Communities Act 1972 can only be repealed expressly by Parliament and cannot be removed by the Crown through its prerogative powers.

Through the introduction of EU law into UK law through the European Communities Act 1972, Parliament intended to legislate in such a way that could not be undone by the exercise of Crown prerogative power. As such, the Court found that the Crown had no prerogative power to affect a withdrawal from the European Treaties by giving notice under Article 50.

Finally the Court was of the opinion that Parliament must have appreciated that the referendum was only intended to be advisory, as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union. Accordingly, it also up held the claimant’s argument on this issue.

The Court stated that the observations made in the judgment relate to a pure legal point about the effect in law of the referendum on whether the United Kingdom will leave the European Union.

The Court stated that it did not question the importance of the referendum as a political event, the significance of which will have to be assessed and taken into account elsewhere.

* Find out more about Brexit and what it means for you with our comprehensive guide.