Thursday 3 November 2016

Brexit litigation - the High Court judgment

Updated 4th and 6th November - lots of opinion - see links to 21 articles at the end.

The claimants succeeded in their argument that Article 50 may not be triggered without the further involvement of Parliament. So held the High Court in M and Santos v Secretary of State for Exiting the EU.  See the court's full judgment via Bailii.

Previous post with links to the transcripts of the 3 day hearing -High Court hearing on article 50 litigation.

It is to be noted that the government (via its lawyers) accepted that the matter was a proper one to be heard by the courts and the court was at pains to point out that they were not saying anything about the merits or demerits of a withdrawal by the UK from the EU.  At para. 5 of the judgment, the court said:

"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."

It has been announced that the government will pursue an appeal to the Supreme Court.  The government could have chosen to take the matter to Parliament and avoid further delay as well as the possibility that the Supreme Court might refer to the Court of Justice of the EU the question whether notice under Article 50 may be revoked unilaterally by the member state.  Further delay may well be seen as economically damaging.

Before the High Court, perhaps for purely tactical reasons, it was assumed by all parties that an Article 50 notification could not be unilaterally withdrawn by the UK once given.  There is respectable argument to that effect but others doubt that it is correct.  The only way to obtain a definitive answer will be for a reference to be made to the Court of Justice of the EU.  Even if notification can be withdrawn, the problems of doing so could, in practice, be difficult.  Those problems seem likely to increase the longer the period that elapses before the withdrawal. 

On 28th October, the High Court in Northern Ireland (Maguire J) found for the government in relation to a number of issues specific to Northern Ireland - The High Court of Northern Ireland - a very brief note on the Brexit case. The court put a number of other matters "on hold" pending the outcome of the High Court hearing in London.

Given that the Parliamentary Briefing on the Referendum Bill is referred to in the judgment (para 107) it is worth reading since page 25 makes it clear that the Bill would establish a consultative referendum.   Legal opinion is beyond doubt that the Referendum Act 2015 itself contained nothing to bind anyone in law to do anything.  This contrasts markedly with the Alternative Vote (AV) referendum where the legislation placed a duty on the Secretary of State to implement the result had it been in favour of AV.

The case divided legal opinion but this outcome accords with my own preferred view as expressed on this blog a few days after the referendum - post of 27th June 2016.  In a post on Head of Legal blog published 4th November, Carl Gardner explains why he thinks the High Court decision is wrong though he doubts that the Supreme Court will reverse it - Why the High Court got the law wrong about Brexit.   I am expecting there to be a considerable amount of comment on this case and I will endeavour to keep abreast of it and will post links to this blog. 


The Spectator - Brexit means defending UK laws and courts.


The following are (mostly short) articles in which the various authors give their reaction to the judgment:

Paul Daly - Administrative Law Matters - Some thoughts on R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768. 

Prospect - What does today's High Court ruling on Article 50 mean?

David Allen Green - Financial Times (£) - The Article 50 decision is taken out of Theresa May's hands

LSE - Jo Murkens - The High Court ruling explained: An embarrassing lesson for Theresa May's government.

Queen Mary University - Professor Sionaidh Douglas-Scott responds to Brexit judgment

How to Crack a Nut blog - Albert Sanchez Graells - Why an appeal of the High Court Parliamentary Approval Brexit judgment will bring the litigation to the Court of Justice of the EU

EU Law Analysis - Steve Peers - Brexit: can the ECJ get involved?

Liverpool University - Viewpoint: Legal analysis of today's successful; Article 50 challenge

Barrister Blogger - Rushed, barely coherent thoughts on today's Article 50 judgment

Law Society Gazette - Brexit: the court speaks

Head of Legal - Carl Gardner - Why the High Court got the law wrong about Brexit

Public Law for Everyone - Prof. Mark Elliott - The High Court's judgment in Miller: A Brief Comment

Greg Callus - A Typo in the Constitution blog - After the Miller judgment  

Judicial Power Project - High Court Miller Judgment: Expert reactions 

Jamie Foster - Brexit gunpowder treason and plot



  1. The High Court addressed the wrong question by focussing on Parliament's intention in enacting the 1972 Act.

    The real question is whether the true meaning of the 2015 Act was to provide for the UK's statutory decision to leave the EU.

    The Court of Appeal held in Shindler at [19](which was not cited in today's judgment)"by passing the 2015 Act, Parliament has decided that it will not withdraw from the EU unless a withdrawal is supported by referendum. In theory, Parliament could decide to withdraw without waiting for the result of the referendum despite the passing of the 2015 Act. But this is no more than a theoretical possibility. The reality is that it has decided that it will withdraw only if that course is sanctioned by the referendum that it has set in train. In other words, the referendum (if it supports a withdrawal) is an integral part of the process of deciding to withdraw from the EU. In short, by passing the 2015 Act, Parliament decided that one of the constitutional requirements that had to be satisfied as a condition of a withdrawal from the EU was a referendum."
    And the High Court failed to apply a Pepper v Hart reading to the 2015 Act despite clear and uncorrected statements by Government proposers (the legal test in Pepper v Hart)that the purpose of the Bill was to provide for the UK's "decision" to leave the EU:

  2. Thank you for the comment. The 2015 Act is dealt with at paras 105-8 of the judgment delivered by this very strong court. The government will have a mountain to climb to get this one overturned though I would never say it is impossible knowing the ingenuity of lawyers !

  3. Really? It has been reported that a leapfrog certificate of a Supreme Court appeal has been issued; so the defence is now free to lodge a leapfrog appeal (perhaps joined by third-party interveners).

    Lord Pannick QC made an implicit Pepper v Hart submission in his closing submissions, without citation of the clearly relevant authority and with only partial statement of the three-part test ("ambiguous"), that "There is no ambiguous provision of the 2015 Act which the court is being asked to interpret".

    The Divisional Court held unanimously at [107] (contrary to Lord Pannick QC's submission that there was no ambiguous provision):

    "Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union."

    Thus the ratio decidendi of Miller, Santos and others relies on the (implicit) Pepper v Hart evidence, extraneous to the statute, of "a clear briefing paper to parliamentarians".

    There is no authority for the Divisional Court giving weight to such Parliamentary evidence, and doing so is arguably contrary to the authority of Pepper v Hart, which emphasizes weight should only be given to clear uncorrected statements by government, or other, proposers, of a Bill prior to Royal Assent.

    Basing the ratio of the Divisional Court's decision on evidence which is arguably contrary to binding authority seems rather problematical given the evidently correct observation of Lord Justice Sales on "government ...evidence to the House of Lords select committee on the constitution in 2008".

    "I am just wondering what assistance we get from this material. It is a different government
    and the government is not a source of authoritative statement about the law, the court is".

    It is trite to observe that just as Government evidence to Parliament is not "a source of authoritative statement about the law" neither is a HoC briefing paper.

    The test of Pepper v Hart may have been before the Divisional Court if these authorities cited in oral argument are in the authorities bundle:
    "Assange v The Swedish Prosecution Authority (Rev 1) [2012] UKSC 22 (30 May 2012) [2012] 2 AC 471 at [11], [12], [92], [97], [161], and [247]

    Brown (Jamaica), R (on the applications of) v Secretary of State for the Home Department [2015] UKSC 8 at [27]. (This is “JB Jamaica” in the Courts below.)



    1. I hope to do a more detailed piece on the actual judgment and will consider your point further.