High Court delivers Brexit bombshell

Posted: 4th November 2016

EUIn a bombshell decision of fundamental constitutional importance, the High Court has ruled that the Government has no power to trigger the UK’s departure from the European Union without first referring the matter to Parliament.

Following the ‘leave’ result of the June 2016 referendum, the Government took the view that it was entitled to invoke its executive powers under the royal prerogative in order to give notice under Article 50 of the Treaty on European Union of the UK’s withdrawal from the EU. That would have fired the starting gun on two years of negotiations leading up to the UK’s eventual departure.

However, in upholding campaigners’ challenge to that stance, the Court underlined the constitutional supremacy of Parliament and its ability to make, or unmake, any law as it chooses. The Government could not, by exercise of its prerogative powers, override legislation enacted by Parliament.

The Government argued that, by convention, it can employ its prerogative powers to make decisions relating to foreign policy, without reference to Parliament. However, the Court found that that convention did not apply as withdrawal from the EU would inevitably have the effect of changing domestic law.

The UK joined the then European Communities by the European Communities Act 1972. That primary legislation was required as it was a condition of membership that community law should be given effect in the domestic law of the UK. Withdrawal from the EU would thus necessarily have the effect of changing the latter.

The power to give notice under Article 50 was not conferred on the Government by the European Union Referendum Act 2015 or any other legislation. Any such notice given could also not be qualified by stating that Parliament is required to approve any withdrawal agreement reached during the course of the negotiations.

The Government plans to appeal to the Supreme Court.