High Court rules on Article 50 challenge

Global Publication November 2016

The High Court has ruled that Article 50 cannot be triggered by the UK Government without the approval of Parliament.

As set out in our previous briefing, a judicial review claim was brought against the Secretary of State for Exiting the European Union which required the Court to determine whether Parliamentary authority is required before Article 50 of the Treaty on European Union (the formal exit mechanism for a withdrawal by a Member State from the European Union) can be triggered.

Following a three-day hearing in October, the panel of three senior judges, comprising the Lord Chief Justice, Master of the Rolls and Lord Justice Sales, today handed down judgment.

The Government had argued that it has a unilateral right to trigger Article 50 pursuant to prerogative powers, which it argued applied in relation to the making or breaking of international treaties. In contrast, the Claimants’ position was that prerogative powers cannot be used to override existing Acts of Parliament (in this case the European Communities Act 1972 which gives effect to EU law in the UK), or to remove fundamental rights of UK citizens which currently exist under EU law. The Claimants’ submissions included reference to the Bill of Rights 1689, which it was argued “expressly prohibits the use of the prerogative in circumstances where its exercise would ‘suspend’ or ‘dispense’ statutory law”.

In a decisive and unanimous judgment, the Court determined that the Government cannot use the prerogative powers to notify the EU of the UK’s decision to invoke Article 50.

The three judges were clear that as a matter of UK constitutional law, the question of whether the Government can use the royal prerogative to trigger Article 50 was one of domestic law and justiciable.

The Claimants’ principal submission had been that the Government could not change domestic law and nullify rights under the law unless Parliament had conferred upon the Government authority to do so either expressly or by necessary implication by an Act of Parliament. Accordingly, it came down to a question of interpretation of the European Communities Act 1972 in light of the relevant constitutional principles.

The Court noted that “the powerful constitutional principle that the Crown has no power to alter the law of the land by use of its prerogative powers is the product of an especially strong constitutional tradition in the United Kingdom…” (para.86). Moreover, the Court concluded that the European Communities Act 1972 “cannot be regarded as silent on the question of what happens to EU rights in domestic law if the Crown seeks to take action on the international plane to undo them. Either the Act reserves power to the Crown to do that, including by giving notice under Article 50, or it does not. In our view, it clearly does not” (para.94).

The Court concluded that the European Communities Act 1972 confers no such authority either expressly or by necessary implication. Accordingly, “the Crown cannot through the exercise of its prerogative powers alter the domestic law of the United Kingdom and modify rights acquired in domestic law under the ECA 1972 or other legal effects of that Act. We agree with the claimants that, on this further basis, the Crown cannot give notice under Article 50(2)” (para.96).

Even before the judgment, it was anticipated that whatever the finding, the result will be appealed and it is expected that this will take the form of a “leapfrog” appeal directly to the Supreme Court. Such appeal is likely to be heard in December in view of the earlier statement by Theresa May that the Government intends to trigger Article 50 before the end of March 2017. Before the decision was handed down, there had been some speculation that the Government would not appeal if it lost, but would instead introduce legislation for Parliament to vote on invoking Article 50 on the basis that MPs would feel compelled to respect the referendum result. However, following the handing down of judgment the Government’s counsel sought a certificate enabling the Government to appeal, which was granted and, shortly afterwards, the Government indicated that it would indeed appeal.

So although the Claimants have been successful, it may be that this is only Round One. Nevertheless, the fact that three senior judges have been clear in their view of the constitutional position suggests that the Government will not have it easy in the Supreme Court.

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