On 3 November 2016, the High Court ruled that the Government cannot trigger the Article 50 process for the UK to exit the European Union (“EU”) without reference to Parliament.
The judgment states that the pure legal question before the Court was “whether, as a matter of the constitutional law of the United Kingdom, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union.” The judgment is clear that it was not for the Court to express any view regarding the political consequences of its ruling or the merits of leaving or remaining in the EU. Therefore, the judgment is not about the UK’s exit from the EU as such, rather, it is about the UK’s constitution.
Broadly, the Government argued that it could use its prerogative power to give notice under Article 50 to withdraw from the EU without any approval from Parliament being required. It considered that nothing had been done by the European Communities Act 1972 (the “ECA”) or any other statute to remove the Crown’s prerogative power to conduct international relations.
On the other hand, the claimants argued that:
- The Government cannot exercise its prerogative powers to remove rights from UK citizens without the express authority of Parliament.
- Parliament has not given such authority either in the ECA or subsequent legislation concerning the EU (including the Referendum Act 2015).
- By giving notice under Article 50, the Government would pre-empt any ability of Parliament to decide on whether statutory rights should be changed. Certain rights would ultimately be removed at the culmination of the Article 50 process.
- The ability of Parliament to vote on any withdrawal treaty negotiated as part of the exit process would not resolve the issue. Parliament would only be able to vote on the negotiated treaty, with the alternative being the automatic exit of the UK from the EU without any treaty being in place (resulting in the automatic removal of citizens’ rights). The real decision would therefore have been removed from Parliament.
The judgment makes the following key points regarding the UK’s constitution:
- The UK’s constitution is not contained in a single written document but is set out in a number of statutes which have particular constitutional importance, as well as fundamental rules of law recognised by both Parliament and the courts.
- The most fundamental rule of UK constitutional law is that Parliament is sovereign and can enact or repeal any law it chooses.
- The Crown (i.e. the government of the day) has the right to use its prerogative powers to conduct international relations and make and unmake international treaties as long as it does not change domestic law. It cannot use its prerogative powers to override legislation enacted by Parliament.
- The ECA is such an important constitutional statute that it is not subject to the usual principle of implied repeal by subsequent legislation, and can only be repealed or amended by express language in a subsequent statute.
The High Court ruled as follows:
- A Court must have regard to the background constitutional principles when engaging in statutory interpretation, particularly in the context of a constitutional statute such as the ECA.
- Unless Parliament legislates to the contrary, the Government should not have power to vary the law of the land by the exercise of its prerogative powers.
- In enacting the ECA, Parliament introduced EU law into domestic law, thereby giving certain rights to UK citizens, which would not be capable of being removed by the Government through the use of the Crown prerogative. Examples include rights of workers under the Working Time Directive, the right to live in another EU Member State pursuant to the free movement rules and the right to seek a reference to the Court of Justice of the EU (the first example could be reinstated by Parliament if it chose but the second and third could not).
- On this basis, the Government does not have prerogative power to give notice under Article 50 to exit the EU without recourse to Parliament.
The Government is appealing the High Court’s ruling at the Supreme Court. For the first time, all 11 permanent judges are to hear the case, which highlights the fundamental constitutional importance of the ruling. The hearing will start on 5 December, with the judgment expected in the new year. If the Supreme Court upholds the High Court’s judgment, it is anticipated that the Government will put a bill before Parliament. This is likely to delay the Government’s proposed deadline of March 2017 for giving notice under Article 50.