From 5 to 8 December 2016, all 11 justices of the Supreme Court will hear en banc the Government’s leapfrog appeal of the High Court decision in the Brexit case. The UKSC Blog will publish a live blog of this hearing in conjunction with lawyers from CMS, Nabarro, Olswang and Matrix.

We will be posting a preview of the Supreme Court hearing with a more detailed analysis of the decision of the High Court in due course. In the meantime, a brief summary of that judgment is as follows.

The facts

uksc-blogFollowing the vote to leave the EU on 23 June 2016, the UK Government asserted that it could give notice to withdraw from the EU pursuant to Article 50(2) of the Treaty on European Union, without seeking approval from Parliament.  Such a position was based on the use of the residual prerogative power of the Crown that relates to international treaties.  Such power resides in the hands of the Government of the day.

Article 50(3) provides that the treaties of the European Union will cease to apply to a Member State once a withdrawal agreement has been negotiated or, failing that, two years following the exercise of the notice (unless the European Council extends this period).

The arguments

The claimants argued that the effect of exercising the notice under Article 50 would be to extinguish, or at least substantially reduce, rights that have become domestic UK law pursuant to the European Communities Act 1972. Section 2(1) of the 1972 Act makes all directly applicable EU law part of domestic UK law without further enactment.

The respondent Secretary of State argued that Parliament could choose to leave prerogative power in the hands of the Crown, even if its use would result in a change to common law and statutory rights. Unless express words could be found in a statute, Parliament could not be taken to have abrogated the Crown’s prerogative powers under Article 50(2). It followed that since there were no such express words in the 1972 Act or elsewhere, such power had not been abrogated.

The High Court’s Decision

The Brexit case was heard at first instance in the Administrative Court, with a three-judge panel presided over by the Lord Chief Justice. The other members of the panel were the Master of the Rolls and ex-‘Treasury Devil‘ Lord Justice Sales.

In its judgment, the Court was at pains to stress that, in light of the high public profile of the Brexit case, it was merely considering the pure legal question of whether, as a matter of UK constitutional law, it was within the Crown’s prerogative powers to exercise Article 50(2), and that it was not expressing views on the political issue of the merits of leaving the EU.

On the basis of the Secretary of State’s concession that a notice given under Article 50(2) was irrevocable (a concession on which some doubt has been cast by legal academics and other commentators), the Court found in favour of the claimants on the following bases:

  • Parliamentary sovereignty means that the Government cannot by exercise of the Crown’s prerogative powers override legislation enacted by Parliament.
  • A notice under Article 50 would have the effect of changing domestic law in that those elements of EU law which Parliament made part of domestic law by enactment of the 1972 Act would in due course cease to have effect.
  • The Court did not accept the Secretary of State’s contention that Parliament must be taken to have intended when it enacted the 1972 Act that the Crown would retain its prerogative power to effect a withdrawal from the EU treaties. The Court did not consider that the language of the 1972 Act supported this argument.
  • On the contrary, the Court agreed with the claimants that the Crown could not change domestic law and nullify rights under the law unless Parliament had conferred upon the Crown authority to do so. The 1972 Act contained no such authority, whether expressly or by necessary implication.
  • The Court therefore concluded that, absent such authority, the Crown could not through exercise of its prerogative powers alter the domestic law of the UK and modify rights acquired in domestic law under the 1972 Act without the approval of Parliament.

What the role of the Supreme Court will be

The Government has, unsurprisingly, appealed the High Court’s decision. The appeal has been “leap-frogged” in that it has skipped out the Court of Appeal and gone straight to the Supreme Court (the final court of appeal in the UK). The appeal has also been greatly expedited, since it usually takes many months if not years for a case to move up the appellate court ladder.

The Supreme Court will consider written and oral arguments from both sides (who may well advance new legal arguments) and is likely to hand down its judgment in the New Year. Although any judgment will be final (in that it cannot be appealed further), there is a very slim chance that the Supreme Court will stay its hand for the time being and instead make a reference to the Court of Justice of the European Union (“CJEU”). References to the CJEU can be made if there are questions of interpretation of EU law. Such a reference would therefore only be made in this case if the Supreme Court’s decision turned on the interpretation of Article 50 of the TEU itself. The only obvious such question may be that of irrevocability of a notice give under Article 50. Since, as explained above, this point was conceded the Secretary of State for the purposes of the High Court decision, unless that issue is somehow revived, and then becomes the point on which the Supreme Court’s decision turns, a reference to the CJEU appears unlikely.

Moreover, given the political imperative to determine the case expeditiously and the likely delay which would be caused by a reference to the CJEU, it would seem that the Supreme Court would be extremely reluctant to go that route. Also, there may be a concern that a reference would be seen as widely ceding an aspect of the question of the UK’s membership of the EU to an institution of the EU. That could be highly controversial even though the CJEU would be determining a discrete legal issue and not even this case, let alone the question of the UK’s continued membership of the EU.

What the Brexit case and the appeal mean for Brexit

The Prime Minister had previously pledged to trigger Article 50 by the end of March 2017 and, after the High Court decision was handed down, insisted that this would not change the timetable.

In apparent anticipation of the Supreme Court upholding the High Court’s decision, it has been reported that the Government has drawn up a three-line bill to be put to Parliament for approval on the triggering of Article 50.  Whether such a bill can pass through both houses of Parliament by the end of March following a decision of the Supreme Court early next year remains to be seen, but even if the bill were not to be directly voted down (even fervent Remainers in Parliament may be reluctant to do that in light of the political context) there is likely to be some delay to the process.

Further information about the live blog will be posted in due course. Subscribe to our newsletter to receive updates straight to your inbox.