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R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 – A remarkable decision by the High Court of England and Wales on notification under Article 50 of the Treaty on European Union and the quintessential executive vs. legislature debate under Constitutional law 

Scope of the article – a legal analysis:

The common assumption that ‘Brexit has happened’ could not be farther away from the truth! On 23rd June 2016, England, Scotland, Wales, Northern Ireland and Gibraltar saw a 71% turn out meaning 30 million voters voting 52% to 48% to leave the European Union. Out of this cumulative 52% Leave vote, England voted 53%, Wales 52.5% , Scotland only 38% and Northern Ireland 44% voters voted to Leave the EU.

Until recently, the understanding was that following the referendum, United Kingdom (UK) government will activate the withdrawal process and start exit negotiations. But that was not meant to be!

The Division Bench of the High Court of England and Wales, constituted by Lord Chief Justice Lord Thomas, the Master of Rolls Lord Terence and Lord Justice Sales, passed an order dated 3 November 2016 in the case titled R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). The Court unanimously held that Article 50 notification which triggers UK’s departure from the EU cannot be given by the executive acting alone under the Crown’s prerogative without being authorized by the Parliament first.

This article analyses the legal effect of the referendum and how the referendum is to be executed based on sound principles of constitutional law. The ensuing analysis has nothing to do with the financial impact or the correctness of UK’s decision to answer Brexit the way it did.

Relevance of the order:

Firstly, the order of the Court has far reaching repercussions for the British political system and every voter who was a part of the Brexit process.

Secondly, the Order is critical in revisiting and maturely appreciating the age old principles of constitutional law – the sovereignty of the Parliament and the prerogative powers of the Crown in a parliamentary democracy.

In the words of the Claimant Ms. Gina Miller herself, “This case is far more fundamental than Brexit. It is about any government, any Prime Minister in the future being able to take away people’s rights without consulting the Parliament. We cannot have a democracy like that! The PM cannot use something called royal prerogative to do it, because we do not live in a tin pot dictatorship. We live in a country that has a sovereign parliament.”

And thirdly, given the similarity between Indian and UK political system, both being parliamentary democracies with a figurehead Head of State, the quintessential executive vs. legislature debate is a subject matter of umpteen Indian High Courts’ and Supreme Court judgments. Hence the Court’s observations in this regard are helpful.

In any case, the reasoning in the decision in the Order would be of special interest to practitioners of constitutional law and professionals in the arena of comparative politico-legal systems of the world.

Description of the Parties to the appeal:

The Claimants (in Indian legal system – titled as Appellants) who have filed the appeal are Gina Miller and Dier Tozetti Dos Santos. Based out of London, both the claimants are associated with the People’s Challenge Group and would be affected by UK’s withdrawal from EU. Gina Miller is an investment manager and a philanthropist. Dos Santos is a hairdresser.

The Defendant is the Secretary of State for Exiting the EU, a member of the British Cabinet and a member of parliament from the ruling Conservative Party. Mr. David Davis was appointed at this position on 23rd June 2016, the day the referendum took place. He is to oversee the withdrawal negotiations following the referendum. He had actively campaigned for UK to leave EU. He is

The Interested Parties to the Appeal include children and their caretakers whose immigration status may be affected by the withdrawal.

3 Key legislations that are crucial for understanding the justiciable questions before the Court:

European Communities Act of 1972 (EC Act): Via this the Act, the UK Parliament legislated for two things - Accession of the UK to the European Economic Community, European Coal and Steel Community and European Atomic Energy Community; and incorporation of the EU law into the domestic law of UK.

Treaties of European Union of 1993 (TEU): TEU is a set of international treaties between EU member states which sets out the constitutional basis for the EU.  It led to the creation of the EU comprising of 28 states and the Euro currency.

Lisbon Treaty of 2007 w.e.f. 2009 and Article 50: After the TEU, many agreements and treaties were entered into, one of them being the Lisbon Treaty of 2009.

Article 50 of the Lisbon Treaty provides that a member state must inform the European Council before it can terminate its membership. This withdrawal clause is the only legal way to leave the EU. Thereafter, a withdrawal agreement would be negotiated between the State and the EU. 2 years’ time has been provided to UK and EU to agree on the terms of the split.

It is notable that till date, no member state has opted to leave from the EU. Only in 1982, Greenland left the then European Communities. In fact, pre-2009, there was no formal legal procedure to leave the EU anyways. And post 2009, Article 50 has never been invoked.

Question of law framed by the Court:

Whether as a matter of constitutional law of the UK, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the UK to cease to be a member of the EU?

The very first page containing the ‘Introduction’ portion of the Order craftily lays down the key facts, sequence of events and the ensuing legal position:

The Order starts with the fact that “On 1 Jan 1973, the UK joined the European Communities. This occurred as a result of a process of Treaty negotiation by the government, the enactment of the European Communities Act 1972 to give effect to Community law in the national legal systems of the UK.” Thus, the Court made two things clear. One, the inception of becoming a member of the EU is an Act of the Parliament. Two, the Act gave effect to EC Law in the domestic law of UK.

The next paragraph continues to state “As a result of the ECA 1972, Parliament by primary legislation gave effect in each jurisdiction of the UK to binding obligations and rights arising under those Treaties. In due course, European Communities became the European Union.” Thus, it is fair to say that UK’s membership is bound not in prerogative power of Crown, but in the EC Act of 1972. 

Then the Court noted – “On 23rd June 2016 a referendum took place under the EU Referendum Act 2015. The question asked was – “Should the UK remain a member of the EU or leave the EU?” The answer given was that the UK should leave the EU.” It is creditable that the Order deliberately omits to quote the percentage of people who chose to Leave. It serves as a good illustration of independence of judiciary.

It is further stated – “Withdrawal from the EU under the Treaty provisions of EU is governed by Article 50 of the Treaty on EU. That Article came into force in 2009 after amendment of the TEU by the Lisbon Treaty of 2007”. Thus, Article 50 is the sole initiating point for the exit. The referendum by itself is of no legal consequence.

In view of the above, the Court sought to answer the justiciable question of law raised before them from a purely constitutional law perspective as to whether the government had the right to initiate the process to leave the EU without a vote from the Parliament.

Critical Analysis of Article 50 of the Treaty on European Union:

Article states “1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirement.” This clause lays down the position on the decision to withdraw from EU.

Then, “2. A Member State which decides to withdraw shall notify the European Council of its intention. …………………………………….. The Agreement shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament”. This clause lays down the position on the decision to notify the EU.

Two points are notable. One, the Article uses the term ‘State’ and not Crown, or executive, or Parliament. And two, the Article itself envisages the role of the European Parliament much before the European Council could approve the withdrawal agreement.

Further, the Court stated that both 50(1) and (2) have to be read together. So if it is decided that the Crown does not have the prerogative power to notify withdrawal under 50(2), then automatically, it follows that the Crown cannot under 50(1) decide to withdraw in accordance with UK’s own constitutional requirements! From this interpretation, it can be inferred that even though decision to notify is under challenge, yet, the court’s order would impact the decision to withdraw too.

Principles of Constitutional Law envisaging Sovereignty of Parliament vis-à-vis prerogative powers of the Crown:

The Court extensively quoted opinions of by constitutional jurists like A.V. Dicey, decisions of the Courts, Queens Bench and Privy Council dating back to 1900s, to affirm the following legal principles.

First, parliament is sovereign. It can create laws and only Parliament can take them away. It can enact primary legislation to change the law of the land in any way it chooses. There is no superior form of law than primary legislation.

Second, judicial will and the will of people operate on two separate planes. It cannot be said that a law is invalid because it is opposed to the opinion of the electorate, since as a matter of law, judges know nothing about the will of the people except in so far as the will is expressed by an Act of the Parliament.

Third, prerogative powers vis-à-vis Legislative powers are only a residue of legal authority left in the hands of the Crown. It is a relic of the past age. A fundamental principle of parliamentary sovereignty and rule of law is that primary legislation is not subject to displacement by the Crown.

And fourth, though as a matter of general principle, the conduct of international relations and making of treaties is a prerogative of the Crown on behalf of UK, but in doing so, the Crown cannot change domestic law by any exercise of its prerogative powers. Thus, while making or unmaking Treaties on the plane of international law, the Crown cannot, without the intervention of the Parliament, confer or alter or deprive rights of individuals which they possess under domestic law/ statutes of UK.

Core Arguments of the Claimants:

First, the primary argument of the Claimants was that the EC Act of 1972 and other statues, which provide that EU law has effect in domestic law, leave no room for the Crown to have any prerogative power to give notice under Article 50 to withdraw from the TEU and/or other Treaties, since that would amount to allowing the Crown to alter domestic law and deprive UK citizens of their legal rights under that law. There are three categories of Rights arising under the EC Act of 1972 and EU Law. The Claimants argued that the effect of withdrawal of these rights would be significant and hence the Crown could not effectuate such withdrawal unilaterally. Only Parliament could make a decision leading to the loss of a UK citizen’s ‘rights’ under the EU law.

Category (i) Rights are capable of replication in the law of UK even if UK withdraws from EU. For eg., rights of workers under the Working Time Directive. Even if UK had no obligation under the EU law to maintain such rights in domestic law, Parliament could choose to do so.

Category (ii) Rights are enjoyed by UK citizens in other member states of EU as provide under the EU law. For eg., rights of free movement of persons, right of free movement of capital and freedom of establishment in other EU states.

And Category (iii) Rights would be automatically lost on withdrawal from EU. Eg. Right to stand for election to the European Parliament, right to seek a reference to European Court of Justice, right to seek regulatory action by EU Commission in UK to investigate violation of EU competition law or environment legislation.

And second, the fact that Parliament would eventually ratify the withdrawal treaty, would not be helpful because Article 50(2) notice would inevitably remove the real decision from Parliament at the initial stage itself.

In the alternative, the European Union Act of 2011 had removed any relevant power under the Crown’s prerogative. It provides that a Treaty which amends or replaces the TEU is not to be ratified unless the treaty has been approved by Act of Parliament.

Core Arguments of the Defendant i.e. the Secretary of State for Exiting the EU:

First, the primary argument was that nothing in EC Act of 1972 removes the prerogative power of the Crown to give notice to withdraw from TEU using express words to that effect. In fact, no other primary legislation also suggests to abrogate Crown’s prerogative on this regard. On the contrary, since no restriction has been placed, it meant that there was implicit recognition of the Crown’s prerogative powers. The defendant argued that Article 50(2) does not provide for a conditional notice. A notice cannot be qualified by saying that it will only take effect if parliament approves any agreement made in the course of negotiations.

Second, if a withdrawal agreement is made, it will be a treaty that would require ratification and as such would be submitted for review by Parliament.

And third, the conduct of international relations and making of treaties is a prerogative of the Crown on behalf of UK.

The Court’s decision based on sound legal foundation:

At the outset, the Court opined that the Defendant went too far in suggesting that under the EC Act the Crown retained prerogative power to take steps to withdraw the UK from the European Communities, and hence now, it has the power under the Crown’s prerogative to give notice Under Article 50.

First, the Court stated that as a practical matter, the Crown could not have even ratified the accession of UK to the European Communities under the TEU unless Parliament had enacted the legislation i.e. the EC Act of 1972. Simply speaking, the accession to the EU was a result of the EC Act of 1972 and hence, withdrawal from the EU would also have to be approved by the Parliament. UK membership is not bound in prerogative power. It is bound in the EC Act of 1972. And thus needs primary legislation to be taken away.

Second, statutory interpretation must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what the Parliament intended by legislating in terms it did. Thus the Court reiterated the well - known principle of interpretation of statutes i.e. determination of legislative intent is relevant.

This is important to note because the Court observed that the Secretary of State had glossed over this important principle and wrongly proceeded to a contention that the onus was on the Claimants to point to express language in the statute removing the Crown’s prerogative. Thus, it was held that the Secretary of State’s argument was totally flawed as it missed the basic constitutional principle that unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by exercise of its prerogative powers.

In fact, the clear and necessary implication of the provisions of EC Act, read in the constitutional context, was to exclude the possibility that the legislation could be turned into an empty shell by the executive acting alone.

Third, the principle that Crown cannot use its prerogative powers to alter domestic law is the product of a strong constitutional tradition in the UK. In any case, EC Act is a constitutional statute and hence it would be exempt even from casual implied repeal by Parliament itself. Though in classical theory, all of Parliament’s statutes are created equal, but the Courts have suggested that ‘some’ legislation, such as the EC Act, are constitutional. Hence, different principles of interpretation apply to them as compared to ordinary legislations.

Fourth, it is again a well-established principle that the Crown’s prerogative operates only in the international plane when such alteration does not affect the domestic law. Only Parliament could create the necessary changes in the national law to have the effect at the level of domestic law which the Treaties required.

Fifth, the EC Act has been amended many times and each time by primary legislation with each change to the Community Treaties. And each such legislation by the parliament amending the Act has been done prior to ratification of the new Treaty, just as in case of the initial accession to the EU. This implies that there cannot be any scope for withdrawal without the Parliament’s approval.

And sixth, the Parliament vide the EC Act intended to legislate by the Act so as to introduce EU law into domestic law and to create rights is such a way that it could not be undone by Crown’s prerogative power. Resultantly, the Parliament by the EC Act of 1972 intended to give effect to each of the three categories of rights in domestic law. Regarding category (iii) rights, the Secretary of State himself accepted that these would be lost upon withdrawal.

Regarding Category (i) rights too, it is the EC Act which is the principal legislation under which these rights are given effect in domestic law. It is immaterial that some of these rights may be preserved under the new primary legislation.

And even regarding the Category (ii) rights, the Court interestingly observed that even though in a highly formalistic sense it may be accurate for the Secretary of State to argue that the main content of these rights is not the product of the EC Act but the operation of EU law with the domestic law of the EU member states, however such an argument was divorced from reality. The reality is that Parliament knew and intended that enactment of the EC Act would provide the foundation for the acquisition by British citizens of rights under the EU law which they could enforce in the courts of the other member states. Thus, the Court beautifully put to use the well-established form vs. substance doctrine of interpretation.

In view of the above exhaustive legal analysis, the Court held that the Secretary of State does not have the power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the UK to withdraw from the EU.

Result of a Referendum – Only an expression of people’s will

It is very important to appreciate that a referendum has an advisory effect only. It neither disables the Parliament nor enables the executive in any way.

The result of a referendum on any topic can be mandatory for law makers in Parliament only if there is a clear language to the contrary in the referendum legislation. And in the case of Brexit where the referendum took place under the EU Referendum Act, 2015, the said Act does not contain any provision to the effect that the referendum is mandatory. The Referendum Act of 2015 does not use any language that digresses from the basic principles of parliamentary sovereignty and representative parliamentary democracy, so as to lead to the conclusion that the referendum was not advisory.

Interestingly, the decision helps us to draw the fine difference between what is legal and what is merely political. Referendum is merely a political event. By itself, it has no legal implications. It is only an indicator of the will of the people on a certain question, and does not have any legal standing that makes it enforceable.

Reactions to the Court’s Order – volatile and scathing with scant regard for legal basis!

Scotland and Wales welcomed the decision. Scotland had in any case specifically denounced that the results of the referendum were democratically unacceptable when 62% of its population voted to Remain with the EU.

However, press reports in England perceived the Court’s order as a betrayal of the people. The Brexit Secretary himself stated that “people are sovereign” and the “the decision is a deliberate willful attempt to betray the voters”. Newspapers like The Sun, The Guardian, The Daily Express and the Daily Mail reported the decision with surprisingly strong language almost framing the judges as potential criminals! The various headlines appearing in the said newspapers are quoted:

“Unelected judges are calling the shots – this is why we voted out!”; “Unelected judges are thwarting the will of the people”; “Judges are enemies of the people – defied 17.4 million Brexit voters”; “Voters will not allow this incredible arrogance”; “Out of touch judges who have declared war on democracy by defying the voters”

It almost seems like the judges could foresee such strong reactions that were devoid of respect for independence of judiciary. And hence, the judges clearly stated in the introductory part of the Order itself that “….. A justiciable question had arisen before us and nothing stated in the order has any bearing on the question of the merits / demerits of a withdrawal by the UK from the EU; nor does it have any bearing on the government policy because government policy is not law”.

Conclusion and prospective way ahead:

An appeal has been filed against the High Court’s decision and it may come up for hearing on between 5th and 9th December, 2016 before the UK Supreme Court. The appeal would be heard by a Full Bench Court i.e. 5 or more Judges. It would be interesting to watch how the Court takes this ahead!

In case the High Court’s Order is upheld by the Supreme Court, it would have far reaching impact. Legally speaking, it would be a victory for the well-established constitutional law principles in a Parliamentary Democracy where the Legislature is sovereign vis-à-vis the Executive.

In terms of practical implications, there are many facets.

First, the decision to withdraw from the EU would have to be first approved by both Houses of Parliament before the executive could notify the withdrawal. This means that an Act of Parliament. Would be introduced.

Second, the British Prime Minister, Ms. Theresa May’s government had hoped to get the withdrawal talks started without a major parliamentary debate or interference. In fact, it is reported that once the referendum results were declared, Ms. May wanted to negotiate behind closed doors to get Britain ‘the best deal’. She stated that she would introduce a Bill called “The Great Repeal Bill” to remove the EC Act of 1972 from the statute book of UK. Thus it is apparent that she would be forced to accommodate competing priorities whether or not Parliamentary approval is required. It has also been predicted that if Theresa May finds Parliamentary opposition intolerable she might seek an early general election date to gain a wider mandate to leave the EU.

Third, there is also a possibility that UK Supreme Court could refer the case to the Court of Justice of the EU (CJEU). Whether this would be helpful or not is a different matter altogether.

Fourth, a gap in the existing law has been exposed. Article 50(2) is silent on the point as to whether or not the notification of an intention to withdraw to the EU is irrevocable. As a result, the TEU might be amended in future. In any case, there is a level of uncertainty as to how Article 50 will be practically implemented because it has never been invoked so far.

It may be appreciated that even if the Parliament does approve the referendum result, yet, having to go through the full parliamentary approval process and debates, would anyways impact could the agreement conditions in a way which the Executive might not have envisaged.

Whatever be the scenario, the High Court of England and Wales has definitely laid the foundation and paved the way for a very significant debate in constitutional law. All eyes on the upcoming Supreme Court hearing next month.

LL.M. Gold Medalist, Faculty of Law, Delhi University, Anusha Singh has over five years professional experience with Senior Counsels, law firms and a Big Four. Lady Shri Ram College Alumna and a published writer, her work appears in Taxsutra, International Taxation Journal, Legal Era, International News and Views Corporation, Hindustan Times, The Tribune, Femina and Women’s Web. She is currently Business Editor at a niche communications consultancy teammagenta. Drop me a line at
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