UK HIGH COURT RULING IN R (MILLER) V SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION
The United Kingdom’s High Court handed down its ruling in R(Miller) v Secretary of State for Exiting the European Union on November 3, 2016. In one of the most important constitutional law cases ever before the UK courts, the Court held that the Crown (as exercised through the executive of the day) has no prerogative power to trigger Article 50 of the Treaty on European Union (Lisbon Treaty). This judgement has several implications, both legal and non-legal, which we will discuss in this brief.
On June 23, 2016, a majority of the British electorate (52%) voted for the UK to leave the EU on the referendum question “Should the United Kingdom remain a member of the European Union or leave the European Union?” The referendum was held pursuant to the European Union Referendum Act 2015.
Prime Minister Theresa May, who assumed the reins of the incumbent Conservative Party after Prime Minister David Cameron resigned after the Brexit vote, has pledged to uphold the will of the British people. Mrs. May had been part of the “Remain” camp but has since stated that Brexit means Brexit
Mrs. May has indicated her intention to make the notification of withdrawal from the EU pursuant to Article 50 by March 2017. This notification is the first step in the process any State would take before withdrawing from the EU. However, the Article, which came into effect in 2009, has never been tested before. Only once this Article has been invoked, can the process of withdrawal negotiations begin. EU leaders have been resolute in their refusal to commence Brexit negotiations with the UK until that country makes its Article 50 notification.
Mrs. May also indicated her intention to commence the Article 50 process without seeking parliamentary approval beforehand. Her argument was that the Crown’s prerogative powers included such a right. This decision, however, was legally challenged by a group of claimants led most prominently by Gina Miller, an investment fund manager. This legal challenge was heard by the High Court over three days in October (13th, 17th and 18th, 2016).
The three-panel Court was comprised of Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, Sir Terence Etherton MR and Sales LJ. The judgement was delivered by Lord Thomas of Cwmgiedd, CJ.
The issue facing the court was “whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament”.
The crux of the Government’s argument was that the Crown under its prerogative powers could make the Article 50 notification without Parliamentary approval and that this had to have been the intention of Parliament under the European Communities Act of 1972 (ECA 1972). The Government argued that neither the ECA nor any other primary legislation has removed the Crown’s prerogative power to withdraw from the Treaty on European Union (Lisbon Treaty) or any other treaties. The Secretary of State, David Davis, also argued that Parliament would have its say on the withdrawal agreement in any case.
The claimants, on the other hand, referred to the fundamental principle in UK constitutional law that rights under the law of the UK cannot be varied by the Crown in exercise of its prerogative powers unless Parliament has expressly or implicitly given the Crown this right. They, therefore, argued that Parliament has not given such authority (whether expressly or implied) in neither the ECA 1972 nor in any subsequent Acts.
In summary, the Court ruled in favour of the claimants and held that the Crown had no prerogative power to give notice of withdrawal under Article 50.
The two main reasons presented by the Court for its ruling were that:
(1) there is nothing in the text of the ECA 1972 to support that the Crown can exercise prerogative powers in such matters. Indeed, the Court methodically laid out several instances in which Parliament intended that EU law be introduced into domestic law in such a way that it could not be undone by the Crown in the exercise of its prerogative powers,
(2) it is contrary to the constitutional principles of parliamentary sovereignty and of the inability of the Crown to change domestic law through the exercise of prerogative powers
Reactions to the Ruling
As one would expect, the ruling has brought mixed reactions. Brexiteers have viewed this defeat as undermining the will of the people. For the Pro-EU supporters, the ruling is a small victory. Ms. Miller in her speech after the ruling reiterated that the case was about “process and not politics” and urged the Government not to appeal the ruling. The pound has appreciated slightly to 1 GBP to 1.25 USD following the ruling.
We see the following implications from the Ruling:
· Parliamentary approval is needed before Article 50 can be invoked. However, this decision is subject to appeal. The Government has been granted leave to appeal to the UK Supreme Court which will hear the matter in December. The Supreme Court’s ruling is final. Therefore, it could either uphold the ruling of the lower court or it could overturn the lower court’s ruling and hold in favour of the Government.
· The ruling appears to suggest that the referendum was merely advisory and not mandatory.
· This ruling does not negate Brexit. The Court went to great pains to explain that what it was being called upon to decide a question of law and not the merits or demerits of a UK withdrawal from the EU. The court does, nor is it its role to, decide on the political issue of whether there should be a Brexit.
· It is unlikely that if Parliament has to vote on the issue that Mrs. May’s timeline of an Article 50 negotiation by March 2017 will hold.
· What is certain though is that there will be more uncertainty.
· Some have speculated that Mrs. May may be forced to call an early general election.
Alicia Nicholls, Consulting Legal Researcher, FRANHENDY ATTORNEYS