The High Court has handed down its decision in Gina Miller & Deir Tozetti Dos Santos -v- the Secretary of State for Exiting the European Union.
The government had argued that it could decide to give the UK’s article 50 notice to the leave the European Union, without having to ask Parliament first. The Claimants disagreed: when Parliament made the European Communities Act 1972, it decided that the UK would join the European Community (as it then was). That gave UK citizens a series of fundamental rights. Only Parliament can lawfully change those rights, or take them away.
The High Court has “expressly accept[ed]” the Claimants’ argument: “… the [government’s] argument is contrary both to [(a)] the language used by Parliament in the 1972 Act[; and (b)] to 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“. Result: “the government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union“.
The government has asked for, and been given, permission to appeal. If the appeal proceeds, we anticipate that it will “leap-frog” the Court of Appeal, and be heard by a full panel of Supreme Court judges in December. We also anticipate the devolved administrations in Scotland, Wales and Northern Ireland will apply for permission to intervene, so that their arguments can be heard at the same time. The High Court expressly refers to and comments on the recent Northern Irish #Brexit related judgment (Re McCord’s Application). The parties to that litigation may also seek to intervene for the same reason. The Supreme Court might hand down its decision before the end of the year – although with so many parties, and so much at stake, this cannot be guaranteed.
This has the makings of a constitutional crisis – a potential “stand-off” between the UK government and each of (a) the Courts; (b) Parliament; and (c) the devolved administrations. It’s not about whether the UK can or should leave the EU. (Unless Parliament takes a different view), that issue was settled by the recent referendum. The question is: does the UK government have the power to start the withdrawal process without asking Parliament first? The High Court’s answer is an emphatic “no“. The next question is: will the government pursue its appeal – and risk losing in the Supreme Court? Or will it seek the sanction of Parliament now, instead? In fact, will the government even survive?
We’ll publish a fuller post later today, which summarizes the High Court’s judgment and offers additional comment.
More to follow …