UK: Parliament Is Supreme And Sovereign - May It Be "Brexit"

"Divorces are messy things, for Individuals, States and Union"

The Hon'ble High Court of U.K. by a unanimous decision of three Hon'ble Judges has put a hurdle in the Britain's exit route from the European Union. In R (Miller) V. Secretary of State for Exiting the European Union (case no. CQ/3809/2016 and CO/3281/2016, decided on 3rd of Nov.' 2016), three judges bench (Lord Thomas LCJ, Lord Etherton MR and Sales LJ) held unanimously that the Article 50 notification which will bring about Britain's departure from the European Union cannot be given by the executive acting all alone under the prerogative powers of the crown but must pass the litmus test in the Parliament.

The Hon'ble Judges after penning down the detailed lengthy judgment finally concluded that Secretary of State does not have power under the Crown's prerogative to give notice to Article 50 of the TEU for the United Kingdom to withdraw from the European Union(reference to Para 111). Thus, Britain's divorce from European Union has to pass the test in Parliament. The way for the will of the people as majority voted for exiting from European Union has to go through the Parliament.

BACKGROUND

1. On 1 January 1973 the United Kingdom joined what were then the European Communities, including the European Economic Community. Parliament passed the European Communities Act 1972 (1972 Act) to allow that to happen since it was a condition of membership that Community law should be given effect in the domestic law of the United Kingdom and primary legislation was required to achieve this [ reference to Para 1 and Para's 36–54]. The European Communities have now become the European Union.

2. Pursuant to the European Union Referendum Act 2015 a referendum was held on 23 June 2016 on the question of whether the United Kingdom as a member should leave or remain in the European Union. The majority answer given was that the UK should leave [reference to Para 2].

3. The process for withdrawal is governed by Article 50 of the Treaty on European Union, which states that once a Member State gives notice to withdraw there is a two-year period in which to negotiate a withdrawal agreement. If no agreement is reached in this time then, subject only to agreement on an extension of time with the European Council acting unanimously, the EU Treaties shall cease to apply to that State. The Government accepts that a notice under Article 50 cannot be withdrawn once it has been given. It also accepts that Article 50 does not allow a conditional notice to be given: a notice cannot be qualified by stating that Parliament is required to approve any withdrawal agreement made in the court of Article 50 negotiations [reference to Para 9-17].

4. The most fundamental rule of the UK's constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament it has been established for hundreds of years that the Crown – i.e. the Government of the day – cannot by exercise of prerogative powers override legislation enacted by Parliament. This principle is of critical importance and sets the context for the general rule on which the Government seeks to rely – that normally the conduct of international relations and the making and unmaking of treaties are taken to be matters falling within the scope of the Crown's prerogative powers. That general rule exists precisely because the exercise of such prerogative powers has no effect on domestic law, including as laid down by Parliament in legislation [reference to Para 18-36].

5. The High Court was very clear that the inevitable effect of triggering Article 50 would be to change the law of the land. Rights previously enjoyed would no longer be enjoyed (more particularly Para's 63-66).

6. For the Court, the government's argument that the claimants had to identify an abrogation of the prerogative in the 1972 Act (the operation of which is contingent on the government entering into agreements on the international plane: reference to Para 77 and 93) The statutory interpretation especially of a constitutional statute "must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislating the way it did"; the statute has to be read "in the light of constitutional principle" (reference to Para 82). In particular, "the major constitutional importance" of the 1972 Act belied the argument that "Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative powers" (reference to Para. 88). That the executive has a broad foreign affairs prerogative is so only because this prerogative cannot be used to modify domestic law (reference to Para 89, 91). The "clear and necessary implication" of the provisions of the 1972 Act, read in their constitutional context, was to exclude the possibility that the legislation could be turned into an empty shell by the executive acting alone.

7. On other side, at Para's. 105-108, the Court clearly held that the legislation providing for a referendum was part of advisory effect only and Parliament must have appreciated that the referendum was intended only to be advisory and it did not stop Parliament or enable the executive in any way. The referendum was purely and simply "a political event" (reference to Para. 108) with no legal implications.

However, it would be interesting to see the strategy of Mrs. May as she has a rocky path forward to give effect to the will of People and also to shield British Pound from further dropping. As per the news available the government would be appealing against the aforesaid verdict of Hon'ble High Court to the Hon'ble Supreme Court, which would be heard in early December.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.