The High Court has ruled that the UK Government cannot legally begin the process of leaving the EU without first consulting Parliament. What does the decision mean for our rights and what happens next?
In their judgment, three of the UK’s most senior judges said that Parliament must vote on the triggering of Article 50 of the Treaty on European Union, which begins the two-year countdown to the UK’s exit from the EU. The Government has been given permission to appeal to the Supreme Court, which for the first time ever will hear the case with all 11 of its Justices.
First, let’s relax into this short video explainer
Now on to the judgment. Deep breaths…
Wait, there’s a difference between Parliament and Government?
Yes there is! Parliament is the UK’s legislature (law maker). It has two ‘houses’: laws are debated by Members of Parliament in the House of Commons and amendments are proposed and discussed in the House of Lords. Parliament is separate from the Government. The Government – also known as the ‘executive’ – is made up of MPs from the political party/parties with the largest numbers of MPs in the House of Commons.
What are these ‘prerogative powers’ and why do they matter?
The main claim in the Article 50 case, brought by lawyers for Gina Miller, was based on an important constitutional principle, namely that the Crown – in modern terms, the Government – cannot use its ‘prerogative powers’ to remove rights that exist in domestic law unless Parliament has clearly allowed it to. Prerogative powers are powers that used to be exercised by the Monarch, and which are now powers held by the Government, for example, in relation to foreign affairs, defence and national security. The Government can generally use its prerogative powers without needing to ask Parliament first.
So why was this case about our rights?
Central to the case was the argument that triggering the Article 50 process would have the effect of taking people’s rights away, and particularly those which flow from membership of the EU. As we have written before, EU membership has given us some important rights, for example relating to employment (maternity leave and maximum working hours), travel around Europe and protection of personal data. The court said that it was at least possible that triggering Article 50 would lead to the loss of those rights.
This because once Article 50 is triggered there is no going back. According to the judgment, Article 50:
will inevitably result in complete withdrawal… from membership of the European Union… at the end of the two year period. The effect of Article 50 on relevant rights is direct, even though the Article 50 process will take a while to be worked through.
So the High Court said that using prerogative powers to trigger Article 50 would have a direct and irreversible effect on British people’s rights. The question then was whether Parliament – when it legislated to bring the UK into the EU in the 1970s – had intended that the Government should be able to use its prerogative powers to trigger Article 50 and remove those rights.
The law which made EU rights happen
To answer this question, the Court had to look to a law called the European Communities Act 1972 (ECA), which gave direct effect to EU law in the UK. According to the judges, the ECA was to be interpreted in the light of fundamental constitutional principles. These principles were that the Government’s prerogative powers could not be used to change domestic law (as enacted by Parliament), and that they only operated “on the international plane” – that is, in the conduct of international relations.
This led the judges to conclude that the ECA did not let the Government trigger Article 50 without Parliament’s consent because that simply wasn’t written into the ECA:
Interpreting the ECA 1972 in the light of the constitutional background… we consider that it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law… in such a way that this could not be undone by exercise of Crown prerogative power.
In plain English: there was nothing in the ECA to suggest that Parliament had authorised the Government to use its powers to remove the rights which were given effect in domestic law by the ECA. Only Parliament could authorise the removal of these rights through the Article 50 process.
All still to play for
All 11 members of the Supreme Court will hear the Government’s appeal against the decision. The case will start on the 5th of December, and could last up to 4 days. The Supreme Court will give its final judgment in the new year. The result of the appeal will be crucial to whether Prime Minister Theresa May can stick to her timetable of triggering Article 50 in March 2017.
- Read the full judgment here.
- For a range of legal academics’ views on the judgment, click here.
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