Brown Rudnick Alert: Brexit Judicial Review Decision - The UK Government Cannot Give Notice Of Withdrawal From The EU Without The Approval Of Parliament

Following hearings in mid-October, the Divisional Court of the High Court of England and Wales has today handed down judgment in the Brexit judicial review of the Government's position that it could issue a notification of withdrawal from the European Union pursuant to Article 50 of the EU Treaty by exercise of its prerogative powers without consulting Parliament. The Court unanimously rejected the Government's position. The effect of the judgment is that there will have to be a vote in Parliament to authorise the issue of the Article 50 notification (a copy of the judgent and an official summary can be found here).

The Government had taken as its starting point the argument that the prerogative powers cannot be limited unless done so expressly by law and that the onus was on the claimants to point to express language removing the Crown's prerogative in relation to the conduct of international relations¹.  This was the wrong starting point according to the Court. The Court considered that the Government's submissions "glossed" over aspects of the strong presumption that Parliament intended to legislate in conformity with strong background constitutional principles and not against them. In particular, the Court considered that the Government's positions "gave no value" to the usual constitutional principle that, unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers. The Court held the Governments submission was "flawed at this basic level" and this was supported by two constitutional principles, namely that the Crown cannot use its prerogative powers to alter domestic law and that the prerogative powers operate only on the international plane.

The Court rejected the Government's entitlement to use the prerogative powers because it considered that the European Communities Act 1972 (which is the legislation pursuant to which the UK became a member of the EU) gave rights to UK citizens and that the EU Treaty does not operate purely on an international plane. The Court rejected the Government's argument that it is entitled to issue the notification by exercise of the prerogative powers because this concerned the withdrawal from an international treaty and hence the withdrawal operated purely on the international level, as opposed to the domestic level. The Court emphasised the constitutional importance of the European Communities Act 1972, which permits UK citizens to enjoy rights under the European law where rights are capable of replication in domestic law ("category (i) rights" - for example, employment rights) and where rights exist directly in other Memeber states ("cateogy (ii) rights" - for example, the free movement of persons),  and as such is not subject to the usual doctrine of implied repeal. As the Court said in the judgment.