By Russell Payne, MJIL Staff Member
On November 3rd, a panel of judges from the Queen Bench Division of the High Court of Justice handed down a ruling that the Crown (and its representative ministers) is not entitled to trigger the United Kingdom’s withdrawal from the European Union.[1] The principal question addressed was whether the Crown could use its prerogative powers to “diminish or abrogate rights under the law of the United Kingdom” without Parliament’s granted authority or consent.[2] The decision hinges on the fact that Parliament passed the European Communities Act 1972 (ECA) to initiate direct application of EU law,[3] and if the Crown offers Article 50 intent to withdraw[4] from the EU, it would invalidate the ECA and effect major changes in domestic law.
To reach this finding, the Court needed to resolve the tension between the Crown’s prerogative foreign policy and treaty negotiating powers, and its lack of authority to alter domestic law with such powers. The Court held that withdrawal from the EU, while facially an exercise in the Crown’s treaty powers, would materially change the domestic law of the United Kingdom.[5] Interestingly, not only domestic rights were addressed. In presenting examples of rights that would be removed by withdrawal from the EU, the Court addressed the right of free travel to other EU countries and held that though it is not a strictly domestic right, it was nonetheless part of the package that Parliament brought into effect under the ECA, and is likewise protected from abrogation by Crown prerogative powers.[6]
It is not clear yet what the fallout of this decision will be. There has been a media backlash against the deciding judges,[7] but it appears that nothing will change in the near term. British Prime Minister Theresa May has warned critics not to slow down Brexit,[8] and the Secretary of State for Exiting the EU, David Davis, has announced the government will be appealing the decision. The case has already been fast-tracked to the UK Supreme Court.[9]
[1]See David A. Brennand, Carolyn H. Jackson & Neil Robson, UK Government Must Consult Parliament Before Triggering Withdrawal from European Union, Court Rules, Nat’l Rev. (Nov. 6, 2016), http://www.natlawreview.com/article/uk-government-must-consult-parliament-triggering-withdrawal-european-union-court; R (Miller) v. Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).
[2] Miller, at ¶ 74
[3] European Communities Act 1972, c. 68 (Eng.).
[4] Id. at ¶ 9 (listing the provision of Article 50 of the Treaty on European Union); Consolidated Version of the Treaty on the Functioning of the European Union art. 50, May 9, 2008, 2008 O.J. (C 115) 47.
[5] See R (Miller) v. Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).
[6] Id. at ¶¶ 65–66.
[7] Denis MacShane, Media-Political Hysteria Over Brexit High Court Ruling Not Justified, EurActiv (Nov. 4, 2016), https://www.euractiv.com/section/uk-europe/opinion/media-political-hysteria-over-brexit-high-court-ruling-not-justified/.
[8] Stephen Castle, Theresa May Prepares to Stare Down Parliament in ‘Brexit’ Standoff, N.Y. Times (Nov. 6, 2016), http://www.nytimes.com/2016/11/07/world/europe/brexit-theresa-may-jeremy-corbyn.html.
[9] Brennand, Jackson & Robson, supra note 1.