The Times, 3rd November 2016
The prime minister must seek parliament’s approval to trigger the process of taking Britain out of the European Union, the High Court has ruled.
In one of the most important constitutional cases in generations, three senior judges ruled that Theresa May did not have power to trigger Article 50 of the Lisbon Treaty to start the two-year process of negotiating Brexit without the prior authority of parliament.
Within minutes of the decisive ruling by the Lord Chief Justice and two other judges, Liam Fox, the international trade secretary, told the House of Commons that the government would appeal to the Supreme Court.
A government spokesman said: “The government is disappointed by the court’s judgment. The country voted to leave the European Union in a referendum approved by Act of Parliament. And the government is determined to respect the result of the referendum. We will appeal this judgment.”
Jeremy Corbyn, the Labour leader, urged the government “to bring its negotiating terms to parliament without delay”, adding that “there must be transparency and accountability on the terms of Brexit”.
Nigel Farage, the Ukip leader, said: “I now fear that every attempt will be made to block or delay the triggering of Article 50. If this is so, they have no idea of the level of public anger they will provoke”.
In their landmark ruling the three judges said that the prime minister had to obtain parliament’s approval before she could trigger the process of leaving the EU.
They ruled against the government’s argument that it could use its “prerogative”, or executive powers to trigger withdrawal under Article 50. Lord Thomas of Cwmgiedd, the Lord Chief Justice, said: “The court does not accept the argument put forward by the government.”
Addressing a packed courtroom at the Royal Courts of Justice he emphasised that the judges were dealing with a pure question of law. “We are not concerned with nor do we express any view as to the merits of leaving the European Union,” he said. “That is a political issue.”
Lord Thomas, who sat with Sir Tererence Etherton, the Master of the Rolls, and Lord Justice Sales, an appeal court judge, ruled that there was no entitlement on the part of the crown “to change domestic law by the exercise of its prerogative powers”.
The Government’s case was “contrary to the language both used by parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament.”
The judges had concluded that parliament intended EU rights to have effect in domestic law and that this was not capable of being “undone or overriden by the crown in exercise of its prerogative powers”.
The challengers — a group of UK citizens — argued that the crown could not change domestic law and nullify rights under the law unless parliament had given it authority to do so. The European Communities Act 1972 contained “no such authority”.
The challenge was brought by several groups of British citizens. The lead case was that of Gina Miller, an investment fund manager and philanthropist living in London. After the ruling she said: “This result today is about all of us: our United Kingdom and our futures. It is not about how any of us voted – each of us voted to do what we believed was the right thing for our country.
“This case is about process, not politics. My dedicated legal team – Mishcon de Reya and counsel – are, alongside myself and my supporters, pleased to have played our part in helping form a debate on whether the rights conferred on UK citizens through parliament legislation 44 years ago could be casually snuffed out by the executive without parliament or our elected representatives and without proper prior consultation about the government’s intentions for Brexit.”
A group of UK citizens in EU countries welcomed the decision. “It will now allow a proper debate about expats’ rights, which were largely overlooked during the referendum campaign.”
John Shaw, chairman of Fair Deal for Expats, said: “This is superb news. We were convicted that our case was just. We’re delighted that the court agrees with us.”
Lord Pannick, QC, her counsel, has argued that the prime minister had no legal power to trigger Article 50 of the Lisbon Treaty to leave the European Union without the prior authorisation of Parliament.
The case, he said, raised an issue of “fundamental constitutional importance concerning the limits of the power of the executive”.
The QC argued that Mrs May could not use royal prerogative powers to remove rights established by the European Communities Act 1972 — which made EU law part of UK law — as it was for parliament to decide whether or not to maintain those statutory rights.
The Supreme Court has cleared December 7 and 8 to hear the appeal. All 11 justices will sit if the appeal goes ahead.
A Supreme Court ruling is likely in January. However that leaves Mrs May with relatively little time to get legislation passed before her March deadline.
It is likely that MPs would approve a bill — not wishing to be seen as blocking the result of the referendum — but there are concerns that it might face hurdles or at least delays in the Lords. Peers could also seek to amend the bill in a way that might tie the hands of negotiators and impose conditions on the UK’s departure.