Tuesday 8 November 2016

The Article 50 "Brexit" Appeal ~ a note

Updated 15th November.

The government's appeal in the Article 50 Brexit case has now been formally lodged with the Supreme Court.  Read the Supreme Court's announcement.  All 11 Justices will sit on the appeal.

The case under appeal is the decision of the High Court in The Queen on the application of (1) Gina Miller and others; (2) Deir Tozetti Dos Santos v The Secretary of State for Exiting the European Union.   Here is the High Court's full judgment or via Bailii and previous post with links to the transcripts of the 3 day hearing -High Court hearing on article 50 litigation.

The High Court held that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

The Supreme Court
has set aside four days, 5 - 8 December 2016, for the appeal hearing. The exact number of days and timings will depend on further submissions received from the parties on the precise legal arguments to be considered, the number of interveners and whether any other related cases are joined to this one. However, at this stage the court expects the hearing to last all four days from Monday 5 December.  Judgment will be reserved and not handed down until the New Year.

The High Court's judgment has attracted an enormous volume of comments from legal writers.  In this previous post there are links to many of them and, overall, they cover both sides of the argument in varying degrees of detail.  I will add to that list as and when I come across further comment.


In a case from Northern Ireland - Re E (A Child) - [2008] UKHL 66, [2009] 1 AC 536 -  Lord Hoffmann said:

"It may however be of some assistance in future cases if I comment on the intervention by the Northern Ireland Human Rights Commission. In recent years the House has frequently been assisted by the submissions of statutory bodies and non-governmental organisations on questions of general public importance. Leave is given to such bodies to intervene and make submissions, usually in writing but sometimes orally from the bar, in the expectation that their fund of knowledge or particular point of view will enable them to provide the House with a more rounded picture than it would otherwise obtain. The House is grateful to such bodies for their help.

An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything. It is not the role of an intervener to be an additional counsel for one of the parties. This is particularly important in the case of an oral intervention. I am bound to say that in this appeal the oral submissions on behalf of the NIHRC only repeated in rather more emphatic terms the points which had already been quite adequately argued by counsel for the appellant. In future, I hope that interveners will avoid unnecessarily taking up the time of the House in this way."

Before the High Court there were certain Interveners.  Other Interveners are possible when the case gets to the Supreme Court - e.g. the Scottish government.

Update 18th November - Supreme Court announcement regarding interveners


The Lord Advocate of Scotland has applied to intervene.   Counsel for the Lord Advocate of Scotland and for the Counsel General of Wales were present in the High Court but played no part in the proceedings.

Interestingly, the High Court said at para 22:

"In these proceedings, this court is called upon to apply the constitutional law of the United Kingdom to determine whether the Crown has prerogative powers to give notice under Article 50 to trigger the process for withdrawal from the European Union. The law we were taken to was primarily the law of England and Wales, with some reference to the position in the other jurisdictions in the United Kingdom, Scotland and Northern Ireland. Although this court only has jurisdiction to apply the law of England and Wales, we note that no-one in these proceedings has suggested that such parts of constitutional law in Scotland and Northern Ireland in relation to the interaction between statute and the Crown's prerogative powers as are relevant to determine the outcome in this case are any different from the law of England and Wales on that topic. Accordingly, for ease of reference and in view of the general constitutional importance of this case we will refer to UK constitutional law." 

Northern Ireland:

In a case brought by Mr Raymond McCord, the High Court of Northern Ireland decided a number of points in favour of the government but the court chose to stand down certain points to await the outcome of the London High Court hearing.  Previous post.  The points "stood over" have yet to be resolved by the Northern Ireland court.  At the time of writing, the applicant's appeal seems likely to come together with the Miller case in the Supreme Court.

10/11/16 - Here is a report about a further hearing in the Northern Ireland High Court on 8th November where a reference under the Northern Ireland Act 1998 is referred to but the report lacks detail. 

: Some "concessions" made by the Government in the High Court :

Article 50 notice is not revocable

In the London High Court it was assumed that a notice under Article 50 may not be revoked.  This appears to have assisted the claimant's case that the giving of the notice leads inexorably to loss of certain rights and rights may only be removed by Parliament and not prerogative.  Here is a question of European Union Law and it is possible that the Supreme Court will, as the final court of appeal in the UK, consider it necessary to know the answer and will therefore make a reference to the Court of Justice of the EU for a ruling.  The answer is not clear as a matter of EU law.

According to a report in The Guardian 11th November, the government is considering arguing before the Supreme Court that a notice under Article 50 is reversible.

On 14th November, the House of Commons library published a Briefing Paper on Brexit and the EU Court.  At para. 3.3 the paper states:

"It is difficult to know how the revocability question affected the High Court’s judgment in Miller . In paragraph 51 the Court states that the effect of triggering Article 50 would be to deny the rights in section 2 (1) of the ECA, which enshrines Treaty rights and other directly applicable EU law into UK law.  Article 50 notification, according to the Court, would strip the provision “of any practical effect”.  Paragraphs 54-67 expand on this point and indicate that the Court accepted the claimant’s submission that it is the Article 50 notification, and the UK’s subsequent withdrawal from the EU, that would deprive the rights provided by the ECA of their effect.  Putting aside the question of whether the ECA actually contains any domestic legal rights, a point debated extensively by constitutional lawyers, it is debatable how the revocability question would have altered the High Court’s reasoning had it been contested by the either the Government or the claimants.  On the one hand, if Article 50 notification is revocable then it is at least legally possible that the act of notification would not have the effect of depriving EU law rights.  On the other hand, even if the notice was legally revocable, the notice could still have the domestic legal effect identified by the High Court."

For an argument that there may not be a power to refer this question to the CJEU see the article by Mikolaj Barczentewicz on the UK Constitutional Law Association blog.  See Article 267 TFEU.

That the decision to notify was justiciable

As a result of this concession, the point was not argued.   At para. 5 the High Court said - "It is agreed on all sides that this is a justiciable question which it is for the courts to decide."

That the Referendum Act 2015 did not give a statutory power to the Minister to notify the EU

It might have been argued, but was not, that what Parliament did when enacting the 2015 Act was to give the electorate the right to make a decision binding on Ministers who would then be empowered to give the required notice in the event that the referendum resulted in a decision to leave.  This has been argued in the political arena.  The 2015 Act did not deal with this point and Parliament could have made the position clear but did not do so.  For a view on this see the 'Judicial Power Project article by Christopher Forsyth at point VI.

*** Grounds of Appeal ***

On 10th November, the government published its grounds of appeal.  


  1. The matter should most certainly not be returned to the High Court for reconsideration of the Pepper v Hart [1993] AC 593 reading that the 2015 Act provided for the UK's statutory decision to leave the EU that I, and perhaps others, have strongly advocated.


    It is clear that under our constitution only the Supreme Court, and not the High Court, has power to settle the hard-edged question of law raised by the claims: what are the "constitutional requirements" of the UK in a decision to leave the EU.

    True it is that additional evidence such as the proceedings in Hansard of various Bills may have to be admitted to settle this question, but appellate courts certainly have jurisdiction to consider new hard-edged grounds of appeal. The case will be determined by statutory construction.

    The Supreme Court, a creature of statute, should construe its appellate jurisdiction to consider a first-instance jurisdiction exercised by the High Court on the usually discretionary remedy of judicial review as an urgent duty because the power the settle the statutory construction of the Acts in question lies with the Supreme Court and not the High Court.

  2. The public-law duty of the High Court when construing statutes in a case of judicial review is very clearly inquisitorial.

    All the parties and their Counsel have overriding public-law duties to assist the Courts in reaching the correct conclusion on legality in cases of judicial review. See the case law on duty of candour for example.

    The judgment very clearly considered the question of whether the 2015 Act provided for a decision as a matter of statutory construction; and it reached a reasoned conclusion.

    Any failure to consider relevant and material authority, such as eg Pepper v Hart, is not a reason to return jurisdiction to a first-instance Court, but it may be relevant to any decision on costs.

  3. Of course Art 50 is revocable - this is a matter of politics not law. Nowhere in Art 50 does it state that notice, once given, cannot be revoked. So it comes down to a matter of consent. If before the two year guillotine falls, the UK and the Eu consent to the withdrawl, the notice is withdrawn.

    1. The question is whether the notice can be withdrawn by the UK without agreement of other member states.