Does the government have the power to trigger Article 50?
In The Queen on the application of G Miller & D Tozetti Dos Santos v The secretary of state for exiting the European Union [2016] EWHC 2768 (3 November 2016), the High Court held that the secretary of state does not have power to give notice, under the Treaty on European Union Art 50, for the UK to withdraw from the EU.
Following the referendum of 23 June 2016 in which a majority had voted in favour of leaving the European Union, the question was whether, as a matter of constitutional law, the Crown, acting through the government, is entitled to give notice to the European Council, under Art 50, for the UK to cease to be a member of the European Union.
The High Court observed that the most fundamental rule of UK constitutional law is that parliament is sovereign. There is no superior form of law than primary legislation, save only when parliament has allowed for this to happen; the European Communities Act (ECA) 1972, which conferred precedence on EU law, is the only example. However, even then, parliament remained sovereign, so that it retained power to repeal the ECA 1972.
The court added that the subordination of the executive government to law is the foundation of the rule of law in the UK and it quoted (inter alia) the Case of Proclamations (1610) 12 Co. Rep. 74: ‘The King hath no prerogative, but that which the law of the land allows him.’
The court accepted that ‘another settled feature of constitutional law’ is that the conduct of international relations (including the making and unmaking of treaties) is a matter for the government. The court explained, however, that this prerogative does not extend to changes to domestic law. And that is what makes this case so unusual; a direct link exists between the UK’s membership of the EU and the contents of domestic law, as a result of a combination of EU law principles and the terms of the ECA 1972. The court concluded that if the UK does withdraw from the EU, directly enforceable EU rights enjoyed by UK citizens will cease to exist.
The secretary of state accepted that some EU law rights would be affected but his main contention was that under the ECA 1972 s 2(1), parliament had intended that a continuing condition for the existence of these EU rights on the domestic plane was the UK’s membership of the EU, which depended solely upon the action of the government on the plane of international law. The court considered, however, that this contention ‘was flawed’ at a ‘basic level’, as it ignored the constitutional principle that, unless parliament legislates to the contrary, the government does not have power to vary the law of the land.
Why it matters: The court concluded: ‘The ECA 1972 could not be regarded as silent on the question of what happens to EU rights in domestic law if the Crown (by its government) seeks to take action to undo them on the international plane. Either the Act reserves power to the Crown to do that, including by giving notice under Art 50, or it does not. In our view, it clearly does not’. This decision confirms that Parliament has to be involved in the Brexit process but it does not define the extent of that involvement. The government has appealed to the Supreme Court; the hearing is scheduled for 5 December and is expected to last four days. David Davis, Secretary for Exiting the European Union has confirmed that the Supreme Court’s decision is unlikely to be released until January.
Does the government have the power to trigger Article 50?
In The Queen on the application of G Miller & D Tozetti Dos Santos v The secretary of state for exiting the European Union [2016] EWHC 2768 (3 November 2016), the High Court held that the secretary of state does not have power to give notice, under the Treaty on European Union Art 50, for the UK to withdraw from the EU.
Following the referendum of 23 June 2016 in which a majority had voted in favour of leaving the European Union, the question was whether, as a matter of constitutional law, the Crown, acting through the government, is entitled to give notice to the European Council, under Art 50, for the UK to cease to be a member of the European Union.
The High Court observed that the most fundamental rule of UK constitutional law is that parliament is sovereign. There is no superior form of law than primary legislation, save only when parliament has allowed for this to happen; the European Communities Act (ECA) 1972, which conferred precedence on EU law, is the only example. However, even then, parliament remained sovereign, so that it retained power to repeal the ECA 1972.
The court added that the subordination of the executive government to law is the foundation of the rule of law in the UK and it quoted (inter alia) the Case of Proclamations (1610) 12 Co. Rep. 74: ‘The King hath no prerogative, but that which the law of the land allows him.’
The court accepted that ‘another settled feature of constitutional law’ is that the conduct of international relations (including the making and unmaking of treaties) is a matter for the government. The court explained, however, that this prerogative does not extend to changes to domestic law. And that is what makes this case so unusual; a direct link exists between the UK’s membership of the EU and the contents of domestic law, as a result of a combination of EU law principles and the terms of the ECA 1972. The court concluded that if the UK does withdraw from the EU, directly enforceable EU rights enjoyed by UK citizens will cease to exist.
The secretary of state accepted that some EU law rights would be affected but his main contention was that under the ECA 1972 s 2(1), parliament had intended that a continuing condition for the existence of these EU rights on the domestic plane was the UK’s membership of the EU, which depended solely upon the action of the government on the plane of international law. The court considered, however, that this contention ‘was flawed’ at a ‘basic level’, as it ignored the constitutional principle that, unless parliament legislates to the contrary, the government does not have power to vary the law of the land.
Why it matters: The court concluded: ‘The ECA 1972 could not be regarded as silent on the question of what happens to EU rights in domestic law if the Crown (by its government) seeks to take action to undo them on the international plane. Either the Act reserves power to the Crown to do that, including by giving notice under Art 50, or it does not. In our view, it clearly does not’. This decision confirms that Parliament has to be involved in the Brexit process but it does not define the extent of that involvement. The government has appealed to the Supreme Court; the hearing is scheduled for 5 December and is expected to last four days. David Davis, Secretary for Exiting the European Union has confirmed that the Supreme Court’s decision is unlikely to be released until January.
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