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The Supreme Court rules against the government on how to trigger Brexit

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The Supreme Court rules against the government on how to trigger Brexit



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Luke Patel
Solicitor Partner
Commercial Dispute Resolution Department
T: 0113 227 9316

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On 24 January 2017 the Supreme Court gave its judgment in the case of R (Miller) v Secretary of State for Exiting the European Union.  

Ms Miller brought a claim against the government arguing that it could not trigger Article 50 of the Treaty on European Union (the mechanism whereby the UK starts the formal process of withdrawing from the European Union) without an Act of Parliament permitting the government to do so. 

The original case was heard by the High Court in November of last year and it ruled that the government did not have power under its prerogative powers (powers which enable decisions to be taken without the need to consult Parliament) to give notice under Article 50 for the UK to withdraw from the European Union.  The government appealed.

In view of the significance of this case, the appeal was heard by the Supreme Court and not the Court of Appeal thereby avoiding the necessity of a further appeal (as undoubtedly whoever was unsuccessful at the Court of Appeal would have appealed to the Supreme Court).  The importance of the issue was also reflected by the fact that all 11 Supreme Court Judges sat on the appeal.  

By majority of 8:3 the Supreme Court dismissed the government’s appeal and ruled that an Act of Parliament was required to authorise the triggering of Article 50.    The reason for their decision was because the terms of the European Communities Act 1972, which gave effect to the UK’s membership of the European Union, were inconsistent with the exercise by ministers of any powers to withdraw from the European Union Treaties without authorisation by a prior Act of Parliament.  The Supreme Court also found, undoubtedly to the relief of the government, that such an Act would not require the consent of the devolved Parliaments of Scotland, Wales and Northern Ireland as relations with the EU were a matter for the UK government. 

Within two days of the ruling the government had presented a Bill to Parliament, the European Union (Notification of Withdrawal) Bill to enable the Prime Minister to trigger Article 50.  Given that the Prime Minister said that she will be triggering Article 50 by no later than the end of March 2017 the government will be hoping that Bill can be passed without any complications or delay.  


The US presidential election is dominating the news and the Republican Party Nominee, Donald Trump, has been causing a stir with some of the comments that he has made. During the course of his campaign to be selected as the Republican Nominee, Mr Trump made a number of statements concerning people of the Muslim faith which were widely reported by the UK media. During a television interview Mr Trump claimed that “We have places in London and other places that are so radicalised the police are afraid for their own lives”. 

Mr Malik, a British Muslim and leader of the Communities United Party claimed that these statements had caused severe loss and distress to the Muslim community in East London’s Green Street and were defamatory and he brought a claim against Mr Trump.
However, the High Court ruled that the pleadings drafted by Mr Malik, who was a litigant in person, did not satisfy the requirements of the Civil Procedure Rules where it was necessary to plead the defamatory meaning of the words complained of. The Judge found that the words complained of did not refer to or identify the Claimant. There was reference to “parts of London” but a reasonable reader would not conclude that Green Street was the intended reference or that Mr Malik could be understood as particularly referred to within that geographical location. Further, the words complained of were not defamatory even if they referred to the Claimant. Accordingly, Mr Malik’s claim was dismissed.

The Judge held that even if the claim had not been struck out for the above reason, as Mr Trump was not a resident of this country the Claimant would have required leave to serve out of jurisdiction but such leave would have been refused by the Court on the basis that the claim did not stand a reasonable prospect of success. 

Defamation claims are usually complicated and difficult to bring and without legal assistance a Claimant can easily come unstuck. Blacks Solicitors LLP has a specialist Defamation Team who can advise and assist on any issues concerning defamation, privacy or media law.