The United Kingdom Supreme Court has handed down its judgement in R (on the application of Miller and Another) (Respondents) v Secretary of State for Exiting the European Union (Appellant).
The full text of the judgement can be found here.
The Respondents in this case sought to challenge the manner in which the result of the UK’s EU Referendum on 2016 is to be taken forward. The High Court of England and Wales handed down its judgement in the case at first instance on whether, as a matter of UK law, the UK Government is entitled to give notice of a decision to leave the EU under Article 50 of the Lisbon Treaty by exercise of the Crown’s prerogative power, and without reference to the UK Parliament. The High Court ruled in favour of the claimants, and the Government appealed the decision to the Supreme Court.
Supreme Court Decision
An eleven‑Justice Bench of the Supreme Court ruled in favour of the Respondents, by a majority of 8 to 3.
The Court held that an Act of Parliament is required to authorise UK Government Ministers to give notice of the decision of the UK to withdraw from the EU. The majority ruled that the legal significance of the 2016 Referendum is determined by what the UK Parliament included in the statute authorising it, and that statue simply provided for the Referendum to be held without specifying the consequences. The Court decided that the change in law required to implement the Referendum’s outcome can be made only in the way permitted by the UK Constitution, namely by legislation. The Court states, at paragraph 50 of its judgment, that “it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law”.
The Court also considered devolution issues, raised on behalf of the devolved governments of Scotland, Wales and Northern Ireland. The Court recognised that withdrawal from the EU will alter the competence of the devolved institutions, and remove the responsibilities to comply with EU law. The Sewel Convention was considered in relation to the decision to withdraw from the EU, given the effect on the devolved competencies of devolved institutions, but the majority held that the policing of its scope and operation is not within the constitutional remit of the courts. The majority held, therefore, that the devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU.
The Attorney General, on behalf of the UK Government, has indicated that the UK Government will comply with the judgement of the Supreme Court and the Secretary of State for Exiting the European Union will make a statement setting out details of the UK Government’s legislative response. The First Minister of Scotland, Nicola Sturgeon, has indicated that, regardless of the Supreme Court ruling, the Scottish Government will table legislation in the Scottish Parliament to allow it to vote on the question of the invoking of Article 50.