03 November 2016

High Court rules that Parliament must decide on Brexit

This article was written by Stephen Kon (partner), Christophe Humpe (partner) and Stephen Williams (managing associate).


On Thursday 3 November, the High Court ruled against the Government and said that Parliament must vote on whether the UK begins the process of leaving the EU.

The High Court handed down its judgment in Miller (R) v Secretary of State for Exiting the European Union, the judicial review launched by a number of individuals challenging whether the Government alone can remove rights granted to them under the EU Treaties. 

The question before the High Court was whether parliamentary approval is necessary before the Government can trigger Article 50 and begin Brexit negotiations with the EU. The case proceeded on the basis that notice under Article 50 can only be given unconditionally and once given cannot be revoked.

The Government argued that as a general principle, international treaties are within its prerogative and so it can issue the Article 50 notice without obtaining the consent of Parliament. It also argued that this right extended to withdrawing from EU treaties.

The High Court disagreed and distinguished European Union Treaties from other international treaties. It noted that EU law had been incorporated into domestic law by virtue of the European Communities Act (ECA) and that the Government cannot as a matter of principle overrule an Act of Parliament. The rights and obligations flowing from the ECA could not be undone by the exercise of the Royal Prerogative.

The Government has since announced that it will appeal the judgment of the High Court. The appeal will be heard before all Supreme Court judges in December, the parties having agreed to leap-frog the Appeal Court. 

If the High Court's judgment is upheld, a key question will be what form Parliament's consent will take. Parliament is unlikely to give a blank cheque to allow the Government to negotiate Brexit as it sees fit. Parliament has already expressed a desire to have a role in the terms put forward for Brexit, for example as regards the extent to which the UK will continue to participate in the single market. Any parliamentary approval to trigger Article 50 may therefore be expected to be subject to various conditions designed to hold the Government to account.  Tensions are therefore likely to arise between the Government's wish to not give a running commentary on its Brexit position and the right of Parliament to scrutinise the Government. Equally, once the Article 50 notification has been given, continued parliamentary scrutiny would appear certain if the reasoning of the High Court is upheld. 

Share on LinkedIn Share on Facebook Share on Twitter Share on Google+
    You might also be interested in

    The EIF has become invaluable for many venture and smaller buyout funds; a number of which may not have been raised without the EIF's cornerstone investment and subsequent support

    11 November 2016

    What might a "hard" Brexit look like for private equity and venture capital firms in the UK?

    28 October 2016

    The French regulator has established a programme to encourage UK based fund managers to establish a base in France and access the EU single market

    07 October 2016

    Cyprus as a destination for private equity, and as an answer to “Brexit, Passporting, BEPS and other challenges"

    23 September 2016

    This publication has been downloaded from the King & Wood Mallesons website. It is provided only for your information and does not constitute legal or other advice on any specific matter. If you require or seek legal advice you should obtain such advice from your own lawyer, and should do so before taking, or refraining from taking, any action in reliance on this publication. If you have any questions, please contact King & Wood Mallesons. See www.kwm.com for more information.