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03 November 2016

Article 50 – today’s judgment in a nutshell

4 mins

On 20 September 1610, Sir Edward Coke, the then Chief Justice, was asked to give a ruling on whether the King could use a Royal Proclamation to suspend an Act of Parliament that had authorised merchants’ trading activities in London. He identified the case as one “of great importance” because it concerned the accountability of “the king to the Commons”. Coke then ruled that the Royal Prerogative could not be used in this way to override rights Parliament had granted. 

This morning, 416 years later, Court 4 was packed with lawyers, journalists and members public many of were wondering whether Coke’s successor, the current Lord Chief Justice, Lord Thomas, was about to defend Parliamentary Sovereignty in a similarly courageous way. And minutes later he, the Master of the Rolls and Lord Justice Sales, did just that in a unanimous judgment. The ‘summary of the summary’ was simply this: “the most fundamental rule of the UK constitution is that parliament is sovereign”.

The Court went on to note that all parties in the case agreed the 2016 EU Referendum was advisory only and so had no effect on government powers or those of Parliament. The Referendum was important politically, of course, but had no effect in law. Instead, as revealed in the full judgment (R (Miller and Others) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)), the Court’s focus was very much on the impact invoking Article 50 would have on ordinary peoples’ rights.

On that, the claimants, interested parties including the People’s Challenge group, and the interveners had also agreed with the Government that withdrawal from the EU by Article 50 would affect UK citizens’ rights that could not be replicated following UK departure from the EU (such as rights to vote, complain to the Commission or to seek a ruling from an EU institution) along with the rights they can exercise in other EU countries (such as free movement and access to health care). The Government had also accepted Article 50, once invoked, could not be reversed. 

It followed, said the Court, that triggering Article 50 would inevitably strip away rights with no realistic prospect of Parliament restoring them. Critically, these were rights that had been granted through Acts of Parliament, starting with the European Communities Act 1972. It would be “surprising” if they could be removed by prerogative power, especially given the strong constitutional presumption that Parliament does not, unless it says so expressly, intend the government to have power to change the law of the land using the prerogative. That was a particularly strong presumption here given the importance and scale of the rights at issue. Drawing on a metaphor used by the People’s Challenge QC, Helen Mountfield, in her submissions, the Court observed, that having ‘switched on’ EU law in the UK using a series of statutes, it was implausible that Parliament had anticipated the government could use the Royal Prerogative to “switch it off again”. The proper interpretation of the 1972 Act, informed by constitutional principle, was that the Royal Prerogative had been excluded by incorporation of EU law into UK law.  

The Court said it was not necessary to deal with the arguments raised about the Act of Union 1707 but, taking account of points made by the People’s Challenge in their submissions about the special position of devolved nations including Northern Ireland, cast doubt on last week’s judgment of Maguire J in the Belfast High Court. Maguire J will hear an application next week seeking permission to appeal from his own judgment direct to the Supreme Court. 

And that is where the Miller case is also headed: Lord Thomas issued a certificate allowing a ‘leapfrog’ appeal from today’s ruling which will be heard by the Supreme Court early in December. 

The People’s Challenge remains an interested party and so is entitled to be involved. The three good reasons for it to be involved in this litigation, backed by thousands of crowd funders, remain. So preparations are already underway to defend today’s judgement – and in turn Parliamentary sovereignty – at that hearing. But the importance of today’s ruling cannot be overstated. Lord Coke would be proud, not only of the judges that have followed in his footsteps, but that ordinary UK citizens were able to contribute to the case that made that possible. 


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