Academic journal article Business Law International

The Supreme Court's Article 50 Judgment: R (Miller) V Secretary of State for Exiting the European Union [2017] UKSC 5

Academic journal article Business Law International

The Supreme Court's Article 50 Judgment: R (Miller) V Secretary of State for Exiting the European Union [2017] UKSC 5

Article excerpt

As has been widely reported, the UK Supreme Court handed down itsjudgment in an appeal from the High Court of England and Wales in respect of a challenge brought to the UK government's right to give a withdrawal notification under Article 50 of the Treaty on European Union (the 'Article 50 Notification') without first seeking authority from the Parliament of the United Kingdom (as opposed to the devolved legislatures) (the 'Westminster Parliament'). This appeal was brought by the UK government in an attempt to overturn the first instance judgment of the High Court, which held that the UK government was not able to give an Article 50 Notification without parliamentary authorisation.

The Supreme Court hearing of the Article 50 appeal ran from 5 December to 8 December 2016. All 11 Supreme Court justices heard the case, the first time that the Supreme Court has sat en banc. Judgment in this case was handed down on 24 January 2017, and by an eight-to-three majority held that an Act of the Westminster Parliament was required to permit the UK government to give an Article 50 Notification.

The UK government arranged for an Act of the Westminster Parliament to be passed at some speed, putting a Bill1 before the House of Commons on 26 January 2017. The Bill passed the House of Commons on 8 February, and was sent to the House of Lords on that date. The House of Lords returned the bill to the House of Commons with two amendments on 7 March.

The UK government's timetable for the giving of an Article 50 Notification by the end of March 2017 was achieved. The process of the UK leaving the EU was formally triggered on 29 March 2017.

Case summary

As a result of the constitutional importance of this case, and given the strong feeling that it gave rise to, a number of intervening parties made submissions in the Supreme Court case.

Royal prerogative arguments

The Secretary of State, respondents (Ms Gina Miller and Mr Deir Tozetti Dos Santos), interested parties (Graham Pigney and others and AB, KK, PR and children) and the expat interveners (George Birnie and others) essentially restated their cases at first instance.

An interesting point to note is that it was common ground between the parties that the giving of an Article 50 Notification was irrevocable, and the Supreme Court was not asked to make a determination on this point.2

In very brief summary, the arguments made were as follows.

The Secretary of State argued that the executive had well-established royal prerogative powers to enter into and withdraw from treaties, and that the UK government was entitled to exercise this power in relation to the treaties that govern UK membership of the European Union (the 'EU Treaties').3 The Secretary of State noted that Parliament would be involved in repealing the European Communities Act 1972 ('ECA 1972'), and that this was adequate to answer argument about the giving of an Article 50 Notification rendering nugatory the ECA 1972 and thereby breaching the principle of parliamentary supremacy.4

Those who had brought the case against the Secretary of State argued that the ECA 1972 created directly effective rights in domestic law, and that for an Article 50 Notification to be given would unavoidably cause at least some of these statutory rights to be frustrated (as an Article 50 Notification was accepted to be irrevocable).5 The UK government's royal prerogative powers cannot be used to defeat those statutory rights because: (1) the Westminster Parliament's intention when enacting the ECA 1972 was that only the Westminster Parliament - and not a minister exercising royal prerogative powers - could defeat the statutory rights being created;6 and (2) as a general principle, clear statutory authority is required for royal prerogative powers to defeat domestic rights.7

Devolution arguments

The Lord Advocate (instructed by the Scottish government) made arguments based on a constitutional convention (the 'Sewel Convention') that requires the approval of the Scottish Parliament in cases where laws applying within Scotland that fall outside the scope of matters reserved to the Westminster Parliament are disapplied or amended. …

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