Brexit commentary | 03 Nov 2016

Brexit: Article 50 Challenge Update

Overview

The High Court today ruled that the Government's proposal unilaterally to trigger Article 50 of the Lisbon Treaty without the express approval of Parliament is unlawful as a matter of UK constitutional law. As has been well-publicised, triggering Article 50 starts the 2 year negotiation period leading to the UK's exit from the EU.

It sets the scene for the appeal of the decision by the Government, given the constitutional importance of the issues at hand. Indeed, special arrangements have been made with the Supreme Court to allow a ‘leap-frog’ appeal (i.e. direct to the Supreme Court, skipping the Court of Appeal) to be heard before the end of the year, in order to provide much-needed clarity on whether or not a parliamentary vote approving withdrawal is required before the Article 50 notification is made. This accelerated court timetable aims to accommodate the Government’s plans for the Article 50 notification to be made by March 2017. If parliamentary approval is needed, MPs could potentially vote against Brexit.

The claimants in this judicial review case were a group of individuals, led by Gina Miller (an investment manager) and Deir Dos Santos (a hairdresser). Arguments were also heard from certain interested parties.

The key issue in the case was whether the Government is entitled to rely on the royal prerogative power to make the Article 50 notification without a vote in Parliament. 

The claimants argued that the prerogative cannot be used to frustrate or substantially undermine rights and duties established by Acts of Parliament, in particular those conferred through the European Communities Act 1972 by which EU law has become part of UK law. The fundamental rights conferred on UK citizens by virtue of EU membership would inevitably be altered following the notification and ensuing Brexit and that requires parliamentary approval. In short, rights conferred by Parliament cannot be taken away by the executive.

The Government, on the other hand, argued that the Article 50 notification involves the Government merely giving procedural effect to a decision (to leave the EU) already made, having been sanctioned by the electorate following a statutory referendum process, and would be consistent with the usual approach by which treaties are negotiated on the international plane and are then effected domestically (with nothing in the 1972 Act abrogating the Government’s power to do so in this case). The Government stressed that any settlement resulting from Brexit negotiations following the Article 50 notification would have to be ratified by Parliament before it could be enacted in domestic law. 

The Court found that there was nothing in the 1972 Act that would support a departure from the fundamental constitutional principles of both the sovereignty of Parliament and the absence of any entitlement on the part of the executive to use its prerogative powers to change domestic law. Article 50 could therefore not lawfully be triggered using the royal prerogative. 

The full judgment can be found here, and a summary of the judgment here.