Cardiff and South East Wales Junior Lawyers Division

Cat Connor, JLD Media Officer and Trainee Solicitor at the Welsh Government, writes about the High Court’s recent decision re Article 50

An analysis of R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin)

Article 50(1) of the Treaty on the European Union was inserted by the Lisbon Treaty. It allows a Member State to withdraw from the EU in accordance with its constitutional requirements. On 3 November 2016, the High Court was tasked with deciding what the UK’s constitutional requirements are.

A refresher on the UK constitution

The UK constitution is not contained within a written document and so it relies, in part, upon fundamental rules of law.

So, as a quick recap: the UK Parliament and the UK government are separate bodies. Parliament is made up of the House of Commons, the House of Lords and the Monarch. The House of Commons contains members who have been elected to represent the UK’s constituencies. Parliament is the UK’s legislature and is responsible for making law. The political party (or parties) having a majority in the House of Commons is invited to form a government and to become the UK executive. In order to govern effectively, the government may generally use prerogative powers formerly invested in the Monarch without Parliament’s permission.

It is however a feature of British democracy that Parliament is supreme. It has the right to make or unmake any law and no other form of law may take precedence over its legislation, unless it allows this to happen. It is therefore a fundamental rule of law that the prerogative powers cannot be used to change the domestic law which is made by Parliament.

The question in R (Miller) was: can the government trigger Article 50 using its prerogative powers, given that to do so would change the European Communities Act 1972 (the ECA)?

R (Miller)

In order to join the EU, the UK Government used its prerogative powers to undertake Treaty negotiation. For completion, though, Parliament needed to enact the ECA, section 2(1) of which subjects the UK to binding rights and obligations arising under EU law. The UK Government made three very important concessions at the outset. It conceded firstly that once Article 50 is triggered, section 2(1) of the ECA is deprived of its practical effect; secondly that once triggered, Article 50 is irrevocable and thirdly that it cannot be triggered conditionally upon the later approval of Parliament.

The claimant firstly argued that triggering Article 50 changes EU law rights which have been incorporated into domestic law; it automatically removes some (such as the rights of workers under the Working Time Directive and the right to vote in European Parliamentary elections) and prevents Parliament from deciding whether or not to maintain others (such as the free movement of persons). She secondly argued that the UK Government could not use prerogative powers to change these rights unless Parliament expressly or impliedly authorised this. That authority was not present in the ECA nor in subsequent legislation relating to the EU, including the European Union Referendum Act 2015. Finally, she argued that the irrevocability of Article 50 meant that Parliament had no say in the decision, and that its ability of to ratify an exit negotiation treaty agreed between the UK and the EU was not an adequate remedy.

The Secretary of State firstly argued that Parliament could allow the UK Government to change rights in domestic law, and that it was not required to give its authority either expressly or implicitly. He secondly argued that legislation on the EU which was made after the Lisbon Treaty introduced Article 50 is silent on the use of prerogative powers, and this means that Parliament accepts the existence of those powers. Finally, he argued that it was proper for Parliament to ratify an exit negotiation treaty under the Constitutional Reform and Governance Act 2010 and that it would also be able to scrutinise any legislation which gave effect to that treaty.

The High Court accepted that the conduct of international relations is a matter for the UK Government under its prerogative powers. However, it agreed that the ECA grants rights to British citizens in domestic law, and those rights depend on the existence of EU treaties. Where a strong constitutional principle exists (such as the principle that prerogative powers cannot be used to change the law made by Parliament),  the court will presume that Parliament intends to reflect that principle. To rebut this presumption, equally strong evidence must be provided that Parliament intended otherwise. Silence is not sufficient. The court held that the irrevocability of Article 50, and its inability to be triggered conditionally, meant that Parliament was being deprived of its say in the decision. In other words, the three concessions of the UK Government (arguably made to avoid the irony of referring the case to the European Court of Justice for interpretation of Article 50) were crucial to the High Court’s finding that it cannot trigger Article 50 without consulting Parliament.

What next?

The UK Government has appealed to the Supreme Court, which will hear the case over 5 – 8 December 2016. Unusually but appropriately, all eleven justices will sit on the panel. Judgment is expected in the New Year, and the implications for Theresa May’s plan to trigger Article 50 by March 2017 are eagerly anticipated.


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