Government loses Article 50 judicial review

Posted on 03 Nov 2016 by Brick Court

The Divisional Court has handed down its judgment this morning on the Article 50 judicial review proceedings on which we have been reporting. The judgment is here, a summary here, and hearing transcripts here. The name of the case is R (Gina Miller & Dos Santos) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). The judges were the Lord Chief Justice (Lord Thomas of Cwmgiedd DJ), the Master of the Rolls (Sir Terence Etherton MR) and Lord Justice Sales.

The Divisional Court has decided that the Government may not use its Executive prerogative powers to give notice of its intention to withdraw the United Kingdom from the European Union under Article 50 of the Treaty on European Union, because this is a matter for Parliament.  Giving notice under Article 50 will inevitably result in the removal of some fundamental rights in EU law enshrined in domestic law by Parliament in the European Communities Act 1972.  The UK constitution does not permit the Executive to alter domestic law by removing those fundamental rights through exercise of its prerogative powers; only Parliament could do so.

The Government has said that it will appeal against the judgment, the Divisional Court issued a certificate permitting the case to “leapfrog” straight to the UK Supreme Court, and the Supreme Court has indicated that it will hear the case over 4 days during the week of 5th December 2016 with a larger than usual panel of judges.