Blow for the Government could lead to greater clarity on what it hopes to achieve from negotiations.

In R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768, the High Court has declared that the UK Government could not take the first formal step towards Britain leaving the European Union without an Act of Parliament.  It is a blow for the Government, but Brexit is still likely.

What is Article 50?

Article 50 of the Treaty on European Union states, “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”.  It provides that the Member State must notify the European Council of its intention, following which negotiations will commence on a withdrawal agreement.

Crucially, the Treaties upon which the European Union is based will cease to apply either from entry into force of the withdrawal agreement, or if no agreement is reached, two years after notification.  It was a common assumption between the Government and the claimants’ lawyers that the notification cannot be withdrawn.

Some commentators regard the two year “guillotine” as a strategic handicap for the UK in negotiations as, at the end of the two-year period, the UK must conclude an agreement or lose the benefit of the Treaties.  EU leaders have refused to commence negotiations until the formal notification is provided.

Why is the Article 50 notification contentious?

The legal challenge centres upon the UK’s “own constitutional requirements”, namely the ability for the Article 50 notification to be given by the Government without further consulting Parliament.  The European Union Referendum Act 2015, which resulted in the Brexit referendum, did not specify the legal consequences of a “Leave” vote, such as giving Government statutory authority to issue the notification.

At the Conservative Party Conference on 2 October 2016, the Prime Minister Theresa May stated, “We will invoke Article 50 no later than the end of March next year.”  The Government has argued that the right to do so falls within the “royal prerogative”, being those powers reserved to the Crown and exercised through the Government.  Importantly, the royal prerogative is used extensively in foreign affairs including in the formation of international treaties.

The claimants argued that the Article 50 notification will inevitably result in the changing of domestic law and the accompanying withdrawal of rights which UK citizens hold as a result of EU membership, following the European Communities Act 1972 (ECA).  This includes, for example, the right to seek a reference in legal proceedings to the European Court of Justice.

What did the High Court decide?

The High Court judgment was given by three senior members of the judiciary sitting in the Divisional Court. They did not accept that Parliament intended that the royal prerogative extended to an ability to withdraw from the EU Treaties despite the incorporation of EU-related rights into UK law by the ECA.   The decision rested in particular on the principle that the royal prerogative cannot be used to alter domestic law and instead the prerogative power regarding foreign affairs only operates on the international level.

What happens now?

The Government has already stated it will appeal, and it was previously confirmed that any such appeal would go directly to the Supreme Court.  It is likely that any Supreme Court judgment will be handed down before the proposed Article 50 notification date, i.e. the end of March 2017.

UPDATE: The Supreme Court will hear the Government’s appeal in a four-day hearing starting on Monday 5 December. Judgment is expected to be handed down subsequently, probably in the New Year.

Hard Brexit, soft Brexit or no Brexit at all?

The electorate of the United Kingdom voted on the question, “Should the United Kingdom remain a member of the European Union or leave the European Union?”

Many have argued that the referendum result, in which 51.9% of those who voted opted to “leave”, is merely advisory. Others are concerned that in certain UK regions, including Scotland and Northern Ireland, a majority voted to remain.

However, most politicians and commentators accept that, despite the non-binding nature of the referendum, it would be politically impossible for the Government to ignore the result.  Nonetheless, there has been a much greater degree of criticism directed at the Government’s lack of clarity on what it wants to achieve from its negotiations with the EU.

The referendum question did not specify the form of Britain’s intended future relationship with the EU, which could range from “near-member” status (which has been described as “the Norwegian model” or “soft Brexit”) to a more extreme version (a “hard Brexit”) with considerably fewer rights and obligations for the UK on issues such as free movement of labour, EU budget contributions, financial services passporting and tariff-free access. The possibility of such a “hard Brexit” has already caused a great deal of concern for international businesses, including car manufacturers and banks, who have based operations in the UK on the understanding that they would enjoy access to the EU market.

Many hope that today’s decision, if upheld on appeal, will result in greater clarity from the Government on its negotiating strategy.  Given the referendum result, it would be surprising for MPs to withhold their consent for the Article 50 notification entirely, but it is likely that they will require the Government to confirm what Parliament is actually consenting to.

Read the full judgment here.