This post has been contributed by Mrs Hilaire Barnett, Module Content Developer for Public law.


House of Parliament in LondonIt is six months since the British people voted in a referendum to leave the European Union (EU).  The consequences of leaving — economic, legal and political — were unclear at the time of the referendum and have not become any clearer since. From the perspective of constitutional law one key question involves the correct legal base from which to start the process of withdrawing from the EU.


Article 50 of the Treaty of European Union provides that a Member State ‘may decide to withdraw from the Union in accordance with its own constitutional requirements’. Once notification to withdraw has been given, a two year period follows during which the terms of withdrawal and future relations with the EU are negotiated.  It is the meaning of the phrase ‘in accordance with its own constitutional requirements’ that has given rise to arguments over whether Article 50 can be triggered under the royal prerogative or whether only Parliament can authorise the notification to withdraw.

For an in depth discussion of the issues see the  House of Lords Select Committee on the Constitution, Fourth Report Session 2016 – 17, HL Paper 44.

The arguments are being tested before the courts, and two cases — one in the High Court of Northern Ireland, one heard in the High Court in England — have been decided differently.   In McCord, Re Judicial Review; Agnew and Others v Same [2016] NIQB 85 the applicants’ principal ground for judicial review was that the prerogative power had been displaced by the Northern Ireland Act 1998 (and other devolution provisions) and that an Act of Parliament was required to trigger Article 50.  The High Court ruled, however, that there were no statutory provisions which expressly (or by necessary implication) limited or altered the Crown’s prerogative power in relation to notification under Article 50.   Mr Justice Maguire for the Court ruled that (contrary to the position taken by the High Court in London in the Millar case discussed below) giving notification under Article 50 did not initiate an irreversible process and as such did not alter the law of the United Kingdom or the rights of individual citizens.

In R (Gina Millar and Others) v Secretary of State for Exiting the European Union [2016] EWHC 27768 (Admin) the High Court also considered the question whether the government (in the name of the Crown) could use prerogative powers to give notice under Article 50. The principal argument for the claimants was that the Crown’s prerogative powers cannot be used by the government to ‘diminish or abrogate rights under the law of the United Kingdom’ unless Parliament has given authority to the Crown to do so. Both parties accepted that triggering the Article 50 process was irreversible and would inevitably lead to the UK leaving the EU at the end of the two year period. There is no formal mechanism for halting or withdrawing from the Article 50 process. However it has been argued that the process is not irreversible: see House of Lords European Union Committee, Eleventh Report of 2015 – 16, HL 138. Accordingly, it follows that the rights conferred under EU law will inevitably be diminished or repealed and that the giving of notice under Article 50 would remove the real decision over rights from Parliament.  For the government it was argued that Parliament could choose to leave prerogative power in the hands of the Crown, even if its use would result in a change to common law and statutory rights.  To remove the prerogative required express words in a statute (or words which led to a necessary implication that this was intended) and no such words could be found in the ECA 1972 or any other statute.

Central to the High Court’s reasoning was the interpretation of the European Communities Act 1972.  The Court emphasised that statutory interpretation must be undertaken in light of the various presumptions which underpin legislation.  Of particular importance here was the principle that — unless Parliament legislates to the contrary — the Crown ‘should not have power to vary the law of the land by the exercise of its prerogative powers’.  The Court recognised that the ECA 1972 was a statute of ‘special constitutional significance’ and ‘the wide and profound extent of the legal changes in domestic law created by the ECA 1972′ .  That, the Court ruled, made it especially unlikely that Parliament intended to leave their continued existence in the hands of the Crown’.  Moreover, Parliament having legislated to accept the direct effect of EU law, it was ‘… not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again’ (see paragraph 87).

Accordingly, having interpreted the ECA in light of the constitutional background and principles, the Court concluded that …. ‘the Crown … has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU’ (at paragraph 92).  Appeal to both cases were considered by the Supreme Court in December 2016 and judgment is expected in January 2017.

Proceedings before the Supreme Court may be viewed here.




  1. The law is a living breathing thing – and as Justice Holmes said “The life of the law has not been logic but experience.” We are indeed embroiled in turbulent times – as you said – and so I thought the following quote from someone wiser than I [almost everyone] – Judge Learned Hand might be appropriate: “Political agitation, by the passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of the law. Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.”
    I am taking Jurisprudence this term and I find that Leslie Green’s, Critique of John Finnis in The Authority of the State (1990) pretty much sums up the turmoil of today. The key word that pervades is ‘conflict’ – there is certainly an abundance of that these days on both sides of the pond. Anyway Green says:

    “The concept of the “common good” does not accord with conflict-ridden reality: “The first difficulty in the notion is to give some account of it in our conflict-ridden societies. Without even considering the possible modes of self-deception and false consciousness, there is just too much observable conflict for us to be satisfied with any pieties about the general interest.”
    “Finnis’ theory collapses into conventionalism: “Although he would reject the description, his theory is a version of conventionalism which argues that the authority of law is justified by its unique capacity to coordinate a broad range of human activity for the common good.” Debates about Trump or BREXIT do not seem to be in the ‘common good’ of anyone – rather a hodgepodge of private agendas primary economic.
    These days I’m reminded of something Adam Gearey wrote: “Parliament is sovereign up to the point of being able to repeal the Human Rights Act … and the European Communities Act … there is nobody that can overrule Parliament … Parliament can make a law murdering blue-eyed babies … Parliament wouldn’t do this because of the realities of politics … So the issue that we have to work through here, is the distinction if you like, between legal and political sovereignty.” It remains to be seen if ‘political sovereignty’ is going to bite ‘legal sovereignty’ squarely on the backside.

    James Gilliam 2nd Year Law UOL

  2. thank you so much; we have been maintaining a Module Forum thread (Great Repeal Bill + other Brexit related material) which has well over one hundred entries to date, as we try to keep apace with unfolding events… if you have a chance to look, any input would be very gratefully received!!!

  3. The High Court judgement of the case The Queen on the the application of (1) Gina Miller & (2) Deir Tozetti Dos Santos v The Secretary of State for Exiting the European Union is wrong.

    I am writing my comments as a currently registered student on the University of London International Programme in Law (LLB graduate entry). I am a first generation Australian citizen. I studied and worked in the UK during Baroness Margaret Thatcher’s prime-ministership.

    A declaration of interest at the outset: if I were a UK citizen at the relevant time, I would have voted Yes for Brexit in the 2016 EU referendum.

    The judgement is more than the issue of the boundary of royal prerogative. There are more fundamental constitutional law issues involved.

    An issue of great importance arising out of this case is the constitutional law status of referendum results as stated in paragraph 106 of the judgement. There is also the issue of judicial legitimacy.

    As a matter of sound constitutional principle, for a democracy, and more so for a mature representative democracy such as the United Kingdom, referendum results should not be justifiable. The result of the UK’s 2016 referendum on her EU membership is no exception.

    The then conservative Prime Minister Edward Heath took Britain into the European Economic Community (or EEC for short, the precursor of the EU) in 1972. The UK’s EU membership has since been a contentious political issue. In order to obtain a reliably accurate public opinion on UK’s continuing EU membership, the then conservative PM David Cameron decided to make good the Party’s 2015 election promise to hold a referendum on the issue. In February 2016, the government announced the referendum would be held on 23rd June 2016.

    The referendum campaign for both the Leave and Remain sides ran for some months. That UK’s EU membership is a highly charged political issue can be seen form the registered voters turnout rate and the rather narrow margin of the result. The former is 72.21%, higher than that of the 2015 general election (66.4%). The latter is 3.78% (Leave 51.89% – Remain 48.11%).

    In part because of the present state of advanced tele-communications and information technologies, the public cannot be said to be left in ignorance (to borrow a phrase from the former Foreign Secretary Douglas Hurd) of the issues involved. The referendum campaign costed million of Pounds. Labour Member of Parliament Jo Cox was murdered during the campaign. The referendum result caused the resignation of a conservative PM who has just won a convincing general election.

    All these, for the High Court to pronounce in paragraph 106 of the judgement: ‘… a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. …’ runs counter to political reality, unsound and incorrect. The European Union Act 2011, at least, would appear to contradict the High Court’s conclusion on this issue.

    If paragraph 106 was carried to its logical conclusion, general elections are referenda by another name. So general election results are advisory only? To whom is it advisory? Parliament? So Parliament can legally ignore general election results?

    Impartiality is an essential and critical element in judicial authority.

    Justice Michael Kirby was a former justice of the Australian High Court until his retirement in 2009. Justice Kirby is gay. He used to recuse himself from cases touching on gay issues to avoid any perceived partiality in legal judgement.

    For such a highly charged political issue as the UK’s continuing EU membership, it is inconceivable and incredible for members of the judiciary not to have a view. Paragraph 106 is a clear and un-equivocal legal statement on the constitutional law status of referendum results, the 2016 UK’ EU membership referendum included. For the judiciary to claim in paragraph 108 of the judgement that the Miller case is unrelated to the 2016 UK’ EU membership referendum result is disingenuous to say the very least. And for reason stated above, to say the judiciary is impartial in the Miller case beggars belief.

    The High Court’s Miller judgement is tainted with perceived judicial partiality and unsound constitutional principles detached from political reality.

    The High Court’s Miller case judgement does call into question the judiciary’s legitimacy in constitutional matters. Questions on suitability need to be asked of the judiciary’s dual role in both formulating constitutional law and adjudicating constitutional law disputes.

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