Advancing human rights and equality
through public interest litigation

Email  Twitter

The High Court of England and Wales rules that Parliamentary consent is necessary to withdraw from EU

R (on the application of Gina Miller and Ors) v The Secretary of State for Exiting the European Union [2016] EWHC 2768
The High Court held that the Secretary of State did not have power under the Royal Prerogative to give notice under Article 50 and thereby commence the process under which the UK would leave the European Union.
On the 23rd June 2016, a referendum was held in the UK on whether to remain a member of the EU or to leave.  The majority of voters in the UK voted to leave.  Subsequent to this, the Prime Minister indicated her intention to use the Royal Prerogative to invoke Article 50 of the Treaty of the European Union (TEU), commencing withdrawal of the UK from the EU.  The applicants challenged this means of invoking Article 50 and argued that the Executive had no authority to use this provision which would arguably render defunct Parliament’s role in making and unmaking laws.
The Court emphasised that the sole question was whether as a matter of law, the government could use its prerogative powers to give notice of withdrawal from the EU under the process set out by Article 50.  It set out the principle that ‘the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign.’  Parliament can change the law as it chooses through enactment of primary legislation, and only Parliament can change the law, or set out provision by which the law may be changed.
The Court found that primary legislation is not subject to displacement by the Crown (Executive government) through the exercise of prerogative powers.  In relation to international relations, the Court found that, ‘By making and unmaking treaties the Crown creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law.  It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights…’
The Court held that once notice is given under Article 50, some rights as incorporated into domestic law by the European Communities Act 1972 (ECA 1972) would inevitably be lost once the Article 50 withdrawal process is completed.
In interpreting statute, the Court held that it is necessary to have regard to constitutional principles which inform the inferences to be drawn as to the intention of Parliament.  The Court found that the Secretary of State’s submission glossed over this starting point for the interpretation of the ECA 1972 by contending that the onus was on the claimants to point to express language in the statute which removed the power of the Executive in relation to international relations.  The Crown does not have power to vary the law of the land by exercising its prerogative powers. 
The Court found that when interpreting the ECA, Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in the exercise of its prerogative powers.
The matter has been appealed and will be heard at the Supreme Court from 5th to 8th December 2016.
Read UK Human Rights Blog here.

Other Public Interest Cases