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