The Curious Case of Article 50 – The ‘What’, ‘Why’ and ‘Where Next’ of the Article 50 Judgement

R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)

In what can easily be described as the most important constitutional case of a generation, the High Court has issued a ruling that the Crown does not have the prerogative power to give notice pursuant to Article 50 of the Treaty of the European Union for the UK to withdraw from the European Union.

Given the importance of the case, along with the sizeable public and media reaction, it is imperative that any OULS student currently studying constitutional law keep up to date with the proceedings as they unfold.

Below we seek to explore the exact question put before the courts, the judgement, its implications, and what comes next.

The full judgement can be found here and a summary here. We highly recommend you have a thorough read for yourself!

A Pure Question of Law

It was readily agreed by both sides that this was a matter that must, under UK constitutional law, be for the courts to decide. With that in mind the question put before the court was;

‘whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of Crown’s prerogative powers and without reference to Parliament.’

Simply put, can the government trigger Article 50 without an Act of Parliament?

It was important that the question being asked of the court was one of law, and law only. The courts have not taken into consideration the positives, negatives, or political implications of the decision to leave the European Union. Neither do they take into consideration the will of the electorate, focusing only on the legal issues at hand. Law students will certainly recognise a familiar name in the judgement, with a quotation from A.V Dicey’s An Introduction to the Law of the Constitution explaining that a law cannot be invalid because it is opposed to the opinion of the electorate.

In addition, both sides were also in agreement that neither the European Union Referendum Act 2015 or any other Act of parliament had granted it the authority to trigger Article 50. They also agreed that Article 50, once triggered, was irreversible and could not be triggered with conditions (for example subject to approval by an Act of parliament).

So far so good.

In the Blue Corner…

The central argument (among others) put forward by the defendant was that it could trigger Article 50 by use of prerogative powers of the Crown. The defendant argued that because the rights granted by s2(1) of the European Communities Act 1972 were defined by reference to the European Treaties themselves, Parliament must have intended those rights to be effective in domestic law subject to the condition of continued membership of the EU. Under this interpretation of the Act, the possible use of the prerogative in international law to take away these rights would be what Parliament had intended. Therefore, such action would not be a violation of the principle of The Case of Proclamations.

The court did not agree.

In the judgement, the court found no evidence in the text of the European Communities Act 1972 to suggest this interpretation. The court found that the argument was contrary to language used in the act. The defendant’s argument was not compatible with the constitutional principle of parliamentary sovereignty, and to absence of any entitlement of the Crown to change domestic law by use of the prerogative.

The court therefore accepted the argument of the claimant that, as a matter of constitutional principle derived from the principle of Parliamentary sovereignty and case law beginning with The Case of Proclamations, the Secretary of State was misconceived. The Crown could not remove the rights conferred under the European Communities Act 1972 by use of the prerogative and so could not trigger Article 50.

An Act of parliament was required.

The Reaction

Reaction to the decision was immense. The following circus surrounding the decision resulting in several major media outlets accusing the judges of being ‘enemies of the people’ and ‘defying the will of the public’. Some politic figures even called for the judges to be sacked.

The legal professions reaction to the perceived attack on the independence of the judiciary was immediate, and outrage at the response by Elizabeth Truss as Lord Chancellor has continued to grow. Following high profile calls for her to be removed from office, including from former chairmen of the Bar Council of England and Wales and former Lord Chancellors, Elizabeth Truss has replied that she takes her duties as lord chancellor seriously and that the independence of the judiciary was a cornerstone of the rule of law. However, she also has insisted ‘it is not the job of the government, or the lord chancellor, to police headlines’.

Tension between the judiciary and the Lord Chancellor continues to grow as 200 judges have also taken legal action regarding discriminatory changes to their pensions.

So what next?

An appeal by the Government has already been granted by the Supreme court, and is to be heard in December. The consensus among the legal profession is that the High Court judgement is likely to be upheld. However, the Government has confirmed it is committed to the date of March 2017 for triggering Article 50.

How can they be sure?

Simply put, even though an Act of parliament is likely to be needed it is believed that a short bill formally granting the Crown the power to do so will be quickly passed to fulfil the legislative requirement. Theoretically the bill could be defeated, however both major parties have confirmed that they would allow the bill to pass.

Brexit, therefore, is still very much on the horizon.


Written by:

Joe Beet – OULS News Reporter

Joe Beet

  1. Mark Forrester 3 years ago

    Once the government had accepted both that art.50 was irreversible (the chap who actually drafted it disagrees!) and that it would inevitably lead to the loss of rights enjoyed courtesy of ECA 72 it’s difficult to see how they thought they could have won.

    It’s hard to imagine that the government’s team, led by the AG, would have thought the the court would have allowed use of the RP on the international plane which would have the effect of removing rights granted by Parliament on the domestic plane. They seemed to be relying on the fact that the ECA is silent on whether this can be done, interpreting this silence as Parliament’s implicit consent. A first year law student studying statutory interpretation would surely have known that the silence would be inevitably interpreted in line with fundamental constitutional principles.

    Admittedly I’m just a student, but the government’s argument seemed doomed from the outset. It does make me think this is all just a political show – a government keen to show it is on “the side of the people”, which might also explain the shameful silence of Liz Truss after the Daily Mail’s infamous headline.

    • Author
      James Sudworth 3 years ago

      Fantastic comment! We are big fans of student interaction and love the passion that your comment shows!

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