Brexit Stage Left
On 24 January 2017 the Supreme Court delivered its eagerly anticipated decision in the case of R (on the application of Miller and another) v Secretary of State for Exiting the European Union  UKSC 5 which is likely to be remembered in legal history as one of the key constitutional cases of this century. But why? What is it about this legal case that marks it out from the others?
It is a cornerstone of the English legal system that decisions made by public bodies can be challenged by those with a sufficient interest in that decision. Legally speaking this is done by way of an application for judicial review in which the Court is asked to review the lawfulness of a decision made by a public body.
This case started out life as an application for judicial review in which Gina Miller and other interested parties asked the Court to review the lawfulness of the Government’s proposal to use something called prerogative powers to commence the process of leaving the EU following the outcome of the EU referendum in June 2016. Prerogative powers, which historically used to be exercised by the monarch but are now exercised by the Government, ordinarily permit the Government to take action without needing the prior consent of Parliament.
The claimants argued that it is a principle of the UK constitution that Parliament is sovereign. In other words Parliament is the only body that has the authority to make and unmake laws.
Therefore because service of a notice under Article 50 of the Treaty of the European Union (which is the notice that needs to be served to start the process of withdrawal) would have the effect of removing rights provided to citizens in the UK as a result of EU law, the service of such a notice requires the approval of Parliament.
The defendant (the Government) argued that when Parliament enacted the European Communities Act 1972 (which made the UK a part of the EU) it must have intended that the Government would retain the ability to use prerogative powers to withdraw from the EU. As a result it was not necessary to pass an Act of Parliament to start the process of withdrawal from the EU.
The High Court, and subsequently, the Supreme Court disagreed with the Government and by a majority of 8 to 3 the Supreme Court ruled that an Act of Parliament was required to authorise the Government to serve a notice under Article 50.
The decision, which has altered the way in which the withdrawal process will be commenced, does not, and cannot, change the outcome of the referendum. That said, the importance of this case is the confirmation provided by the Supreme Court that the only way in which the decision of the referendum can be implemented is one which is compliant with the terms of the UK constitution (which requires the enactment of legislation in this instance).
Following the decision, the Government has announced that it will publish a White Paper outlining its proposals for withdrawal following which a Bill will be placed before Parliament. As a result, there still remains an element of uncertainty surrounding the manner in which the UK will Brexit from the EU and that may remain the case for some time…