R (Miller and Another) v Secretary of State for Exiting the European Union
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd CJ,Sir Terence Etherton Mr,Sales LJ |
| Judgment Date | 03 November 2016 |
| Neutral Citation | [2016] EWHC 2768 (Admin) |
| Docket Number | Case No: CO/3809/2016 and CO/3281/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 November 2016 |
[2016] EWHC 2768 (Admin)
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Chief Justice of England and Wales
The Master of the Rolls
Lord Justice Sales
Case No: CO/3809/2016 and CO/3281/2016
Lord Pannick QC, Rhodri Thompson QC, Anneli Howard and Tom Hickman for the 1 st Claimant
Dominic Chambers QC, Jessica Simor QC and Benjamin John for the 2 nd Claimant
H.M. Attorney-General, James Eadie QC, Jason Coppel QC, Tom Cross and Christopher Knight for the Defendant Secretary of State
Helen Mountfield QC, Gerry Facenna QC, Tim Johnston, Jack Williams and John Halford for the 1 st Interested Parties
Manjit Gill QC, Ramby De Mello and Tony Muman for the 2 nd Interested Parties
Patrick Green QC, Henry Warwick, Paul Skinner and Matthieu Gregoire for the Interveners
Hearing dates: 13 th, 17 th and 18 th October 2016
Judgment Approved by the court for handing down
(subject to editorial corrections)
Lord Thomas of Cwmgiedd CJ, Sir Terence Etherton Mr and
Introduction
(a) The question for the court
On 1 January 1973 the United Kingdom 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 ("the ECA 1972") to give effect to Community law in the national legal systems of the United Kingdom and then ratification by the United Kingdom and other Member States of the amended Community Treaties, Thus, as a result of the ECA 1972, Parliament by primary legislation gave effect in each jurisdiction of the United Kingdom to binding obligations and rights arising under those Treaties. In due course the European Communities became the European Union.
On 23 June 2016 a referendum took place under the European Union Referendum Act 2015 ("the 2015 Referendum Act"). The question asked in the referendum was "Should the United Kingdom remain a member of the European Union or leave the European Union?" The answer given in the referendum was that the United Kingdom should leave the European Union.
Withdrawal from the European Union under the Treaty provisions of European Union is governed by Article 50 of the Treaty on European Union ("TEU"). That Article came into force in 2009 after amendment of the TEU by the Lisbon Treaty of 2007.
The sole question in this case is whether, as a matter of the constitutional law of the United Kingdom, 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 United Kingdom to cease to be a member of the European Union. It is common ground that withdrawal from the European Union will have profound consequences in terms of changing domestic law in each of the jurisdictions of the United Kingdom.
(b) The common ground that the question is justiciable
It is agreed on all sides that this is a justiciable question which it is for the courts to decide. It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law. The policy to be applied by the executive government and the merits or demerits of withdrawal are matters of political judgement to be resolved through the political process. The legal question is whether the executive government can use the Crown's prerogative powers to give notice of withdrawal. We are not in any way concerned with the use that may be made of the Crown's prerogative power, if such a power can as a matter of law be used in respect of Article 50, or what will follow if the Crown's prerogative powers cannot be so used.
(c) The parties to the proceedings to resolve the legal question
The Secretary of State is the appropriate representative of the Crown acting through the government, If the claimants' case is correct, it will of course cover action by any other government minister. Aspects of the submissions for the government were presented in turn by the Attorney General, Mr Eadie QC and Mr Coppel QC.
It is not difficult to identify people with standing to bring the challenge since virtually everyone in the United Kingdom or with British citizenship will, as we explain at paragraphs 58 and following, have their legal rights affected if notice is given under Article 50. The claimants and interested parties comprise a range of people whose interests are potentially affected in different ways. The main part of the argument for the claimants was presented by Lord Pannick QC, appearing for the first claimant. His submissions were adopted by those appearing for the other claimant and the interested parties. Certain aspects of the argument for the claimants and the interested parties were presented by other counsel, Mr Chambers QC, appearing for the second claimant, dealt with the topic of parliamentary sovereignty. Miss Mountfield QC, appearing for one group of interested parties, dealt with the topics of EU citizenship rights, the position of Scotland under the Act of Union 1707 and the impact of the devolution legislation. Mr Green QC, appearing for interveners who are British citizens (or those associated with them) exercising their free movement rights under EU law by living in other EU Member States and having access to public services there, focused on the impact which notification under Article 50 would have upon them and also dealt in particular with the effect of the European Union Act 2011. Mr Gill QC focused on the position of another group of interested parties for whom he appeared, who are children and their carers whose immigration status in the United Kingdom may be affected as a result of notification under Article 50. Counsel for the Lord Advocate of Scotland and for the Counsel General of Wales were present in court but played no part in the proceedings.
(d) The scheme of the judgment
We will answer the question for our decision under the following headings:
(1) Article 50 of the TEU (paragraphs 9–17)
(2) The principles of constitutional law: the sovereignty of Parliament and the prerogative powers of the Crown (paragraphs 18–36)
(3) The domestic effect of EU law under the ECA 1972 (paragraphs 37–56)
(4) Categories of rights arising under the ECA 1972 and EU law (paragraphs 57–66)
(5) UK legislation in relation to the EU subsequent to the ECA 1972 (paragraphs 67–72)
(6) The parties' principal submissions (paragraphs 73–76)
(7) Our decision on the question (paragraphs 77–104)
(8) The Referendum Act 2015 (see paragraphs 105–108)
(9) Conclusion and form of declaratory relief (paragraphs 109–111)
(1) Artide 50 of the TEU
(a) The terms of Article 50
Article 50 states:
"1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49."
(b) Common ground: notice is irrevocable and cannot be conditional
Important matters in respect of Article 50 were common ground between the parties: (1) a notice under Article 50(2) cannot be withdrawn, once it is given; and (2) Article 50 does not allow for a conditional notice to be given: a notice cannot be qualified by, for example, saying that it will only take effect if Parliament approves any agreement made in the course of the negotiations contemplated by Article 50(2).
(c) The effect of the notice
Once a notice is given, it will inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union and from the relevant Treaties at the end of the two year period, subject only to an agreement on an extension of time between the United Kingdom and the European Council (acting unanimously) as set out in Article 50(3) or the earlier making of a withdrawal agreement between the United Kingdom and the European Council (acting by a qualified majority and with the consent of the European Parliament). The effect of the giving of notice under...
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