Royal prerogative cannot be used to give notice of withdrawal from EU, High Court rules
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, three senior judges have ruled in the Divisional Court.
Responding to the judgment, the Government has already confirmed it intends to appeal the ruling to the Supreme Court, and has been given permission to do so by the Divisional Court. The Supreme Court is expected to give its permission for an appeal and all 11 justices are likely to hear the case in December.
The Divisional Court comprised the Lord Chief Justice, Lord Thomas of Cwmgiedd, the Master of the Rolls, Sir Terence Etherton, and Lord Justice Sales.
In Miller, R. (on the application v of) v The Secretary of State for Exiting the European Union  EWHC 2768 (Admin) the three judges said there was nothing in the text of the European Communities Act 1972 to support ministers’ view that the royal prerogative could be used in the way the Government hoped.
The judges said the Government’s argument was contrary both to the language used by Parliament in the 1972 Act and 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.
During the case the Government had accepted that:
- A notice under Article 50 cannot be withdrawn once it has been given;
- Article 50 does not allow a conditional notice to be given: a notice cannot be qualified by stating that Parliament is required to approve any withdrawal agreement made in the course of Article 50 negotiations
The Government’s central contention was that Parliament must be taken to have intended when it enacted the 1972 Act that the Crown would retain its prerogative power to effect a withdrawal from the Community Treaties (now the EU Treaties), and thereby intended that the Crown should have the power to choose whether EU law should continue to have effect in the domestic law of the UK or not.
The Divisional Court instead expressly accepted the principal argument advanced by the claimants. The latter argued that the Crown could not change domestic law and nullify rights under the law unless Parliament had conferred upon the Crown authority to do either expressly or by necessary implication by an Act of Parliament. The 1972 Act, in the claimants’ submission, contained no such authority.
The judges said: “….[It] follows from the detailed analysis that we have set out that the ECA 1972 confers no such authority on the Crown, whether expressly or by necessary implication. Absent such authority from the ECA 1972 or the other statutes, the Crown cannot through the exercise of its prerogative powers alter the domestic law of the United Kingdom and modify rights acquired in domestic law under the ECA 1972 or the other legal effects of that Act. We agree with the claimants that, on this further basis, the Crown cannot give notice under Article 50(2).”
The judges stressed that the question before the court was “a pure issue of law”, adding that they were not expressing a view on the merits or otherwise of withdrawal from the EU.
A government spokesperson said: “The government is disappointed by the Court’s judgment.
“The country voted to leave the European Union in a referendum approved by Act of Parliament. And the government is determined to respect the result of the referendum.
“We will appeal this judgment.”