Published: 10th November 2016

By now we will all be aware of the decision of the High Court in Gina Miller & Deir Tozetti Dos Santos v The Secretary of State to the effect that the UK government does not have the power to give notice under Article 50 for the UK to withdraw from the European Union.

You may find the following brief article (“in less than 500 words”) prepared by Chris Finney of Cooley LLP a useful summary of the Article 50 situation – so far.

Brexit: the High Court’s decision in less than 500 words

Contributed article; Chris Finney, Partner Cooley LLP

  1. The UK voted to leave the EU. To do that, it must give an “Article 50 notice”. The government believes it can give the notice using the “royal prerogative”. Gina Miller and Deir Tozetti Dos Santos disagreed, so they asked the Court: (a) for permission to seek a judicial review; and (b) to consider the merits of their claim.
  2. The “prerogative is a relic of a past age”. It’s what’s left of the power that rested with the Crown, and is now vested in the government of the day. It’s “only available for a case not covered by statute”.
  3. Legal issue: is there enough of the prerogative left for the government lawfully to give an Article 50 notice? Or can it only do that if Parliament agrees?.
  4. Judgment: Parliamentary approval is required for 2 overlapping reasons:
    • as a matter of general constitutional principle derived from the sovereignty of Parliament … the Crown cannot change domestic law … unless Parliament [has] conferred upon [it] authority to do so either expressly or by necessary implication by [statute]”. Giving the Article 50 notice will change UK domestic law. There isn’t a statute that gives the Crown authority to do this. So it can’t;
    • The European Communities Act 1972 created and gave UK citizens and companies 3 categories of European rights: (a) rights capable of being replicated in UK law (eg, workers rights under the Working Time Directive); (b) rights enjoyed by UK citizens and companies in the rest of the EU (eg, the rights of free movement of persons and of capital, and freedom of establishment without an EU country impeding the exercise of those rights); and (c) rights that cannot be replicated in UK law (eg, the right to stand for election to the European Parliament, to vote in these elections, and to ask the Court of Justice of the EU for a decision on the scope and enforceability of UK citizens’ European rights). If the Article 50 notice is given, it will irrevocably change or remove rights in all 3 categories. Parliament created these rights. So only Parliament can change or take them away.
  5. Long story short: the government’s argument contradicts “the language used by Parliament in the 1972 Act and … the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers”. Put simply: “The government does not have power under the Crown’s prerogative to give [an] Article 50 [notice]“.
  6. The government can appeal; and this is likely to be heard by a full panel of 11 Supreme Court Justices in December.
  7. In the meantime, we have the makings of a constitutional crisis. The UK government is in a potential “stand-off” with (a) the Courts; (b) Parliament; and (c) the devolved administrations of Scotland, Wales and Northern Ireland.
  8. Irony: this is because Parliament is sovereign, and UK law is supreme. We don’t need #Brexit to secure either of these things, after all. We can’t bring #Brexit about without recognizing and respecting these facts either.

This article has been republished with Cooley’s consent. Please see original item on Cooley’s blog

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