REUTERS | Peter Andrews

Article 50 and Brexit in the High Court: the immediate aftermath of Miller and Santos and McCord, and further developments

Public lawyers, and their dusty copies of Dicey’s An Introduction to the Law of the Constitution, can rarely have been in such demand in recent times.

In what will be breaking news to only a few, the High Court in Miller and Santos held on 3 November 2016 that notice pursuant Article 50 of the Treaty on European Union could not be given by the government without Parliamentary approval. Whilst the court was asked to examine only a relatively discrete legal question, the impact of its decision on the political and constitutional mechanics of the UK’s withdrawal from the EU, and potentially of the popular/media perception of the judiciary, may be longstanding. As it stands, the government cannot (lawfully) notify the European Council of Britain’s intention to leave the EU under Article 50 by way of the Royal prerogative. The case will rank as one of the most significant recent judicial examinations of UK constitutional law (see Legal update, Judicial review application successfully challenges the government’s proposal to invoke Article 50 and trigger withdrawal from the EU by Royal prerogative power (High Court)).

That is, perhaps, at least until the Supreme Court considers the issue. In his statement to Parliament on 7 November 2016, the Secretary of State for Exiting the European Union, David Davis, confirmed that the government will appeal the High Court’s judgment to the Supreme Court (the case has already been granted permission to “leapfrog” the Court of Appeal) (Department for Exiting the European Union: Oral statement to Parliament, Process for invoking Article 50: Ministerial statement (7 November 2016)). On 8 November 2016, the Supreme Court unsurprisingly granted permission for the government’s appeal to proceed to a full hearing before all eleven Justices of the Supreme Court. The appeal has been listed for 5 to 8 December 2016 and will be chaired by Lord Neuberger, the President of the Supreme Court, with judgment anticipated to follow “probably in the New Year” (see Legal update, Supreme Court grants government’s application to appeal Miller and Santos High Court judgment and sets hearing dates).

The Supreme Court may see things entirely differently and it is possible, of course, that it upholds the government’s appeal. It could yet make a judgment of wider and unanticipated constitutional significance. The Supreme Court may, in addition, receive representations that the High Court did not consider. Speaking shortly after the High Court’s decision was handed down, for example, the First Minister of Scotland, Nicola Sturgeon, stated that the Scottish government will “actively consider” whether to participate in the case ( Nicola Sturgeon deciding whether to join Article 50 legal battle (3 November 2016)). The Court of Appeal in Northern Ireland is considering whether to allow the McCord Article 50 case heard by the High Court of Justice in Northern Ireland, which preceded Miller and Santos, to leapfrog to the Supreme Court also (see Legal update, Judicial review application challenging the government’s intention to use the Royal prerogative to invoke Article 50 and trigger withdrawal from the EU rejected (High Court of Justice in Northern Ireland)). It heard representations by the government, the appellants and the Attorney General on 8 November 2016, which included what may be the first invocation by a chief law officer of a devolved region of a purported power to refer devolved matters to the Supreme Court ( Brexit appeal should “leapfrog” to Supreme Court (8 November 2016)). If permission is granted to the appellants to appeal to the Supreme Court, and/or the Attorney General’s referral is upheld, whether this case could be joined with Miller and Santos in the Supreme Court remains to be seen.

Mr Davis’ statement to Parliament reiterated that the government intends to issue notification to the European Council under Article 50 before March 2017.

It is probably not the time to put away Dicey just yet.

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