In R (Miller & Anor) v The Secretary of State for Exiting the European Union  EWHC 2768 (Admin), a Divisional Court of Queen’s Bench [Thomas LCJ, Etherton MR and Sales LJ] has rejected the Government’s contention that it has the power under Crown Prerogative to trigger the process under Article 50 TEU for the UK to withdraw from the European Union without the prior approval of Parliament.
The Court summarised its view of the Government’s position as follows:
“There is nothing in the text [of the European Communities Act 1972] to support it. In the judgment of the Court the argument is both contrary to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers. The Court expressly accepts the principal argument of the claimants.
For the reasons set out in the judgment, we decide that the Government does not have power under the Crown’s Prerogative to give notice under Article 50 for the UK to withdraw from the European Union.”
The Government has been given permission to appeal to the Supreme Court. According to Brexit Law, the Divisional Court issued a certificate permitting the case to “leapfrog” straight to the UK Supreme Court, and the Supreme Court has indicated that it will hear the case over 4 days during the week of 5 December with a larger than usual panel of judges.
[To be updated when we have digested the full judgment.]
PS The decision provoked the following reaction:
Unelected judges calling the shots. This is precisely why we voted out. Power to the people! https://t.co/TocS1bJnEM
— David Davies MP (@DavidTCDavies) November 3, 2016
I can’t help thinking that the Government were naive in thinking that they could win on the basis of ‘we can do it – because we say we can’. Perhaps now, they will deploy adequate legal resources to a proper defence of their position. Because we are now in the position where it’s Parliament v. the People. And there are more people than members of Parliament, when it comes to the Brexit Vote.
And, if the Government cave in – than it’s likely they would lose a vote of confidence in the House of Commons and would have to limp on for five years, with no BREXIT and a lame duck PM.
I respect the judgment of the Court, but hope that the Supreme Court over turns the judgement, otherwise we will become ungovernable.
36 years working in the House of Commons disabused me of any illusions I might have had at the beginning about the naivety of politicians. I’m afraid that by the end of my time there, I couldn’t work out what was less appealing: the overweening self-regard of a large number of politicians (though certainly by no means of all of them) or their almost complete lack of self-doubt. Which is why I left without a backward look.