The political upheaval in the UK following the June Referendum resulted in a new Government being formed. Prime Minister Theresa May declared that “Brexit means Brexit” and that she would notify under Article 50 of the EU Treaty the withdrawal of the UK from the European Union.
Opinions have been divided on what Brexit means, whether this involves leaving the Single market entirely and having no further reciprocal arrangements with the EU, whether or not Parliament has a right to vote on the terms of withdrawal, or whether the country is now is in the hands of the government as to what terms will be agreed with the other 27 member states.
Two litigants, Gina Miller and Deir Dos Santos, brought claims in the Divisional Court for a judicial review of the government’s stated intention to notify the EU under Article 50 of the Treaty on European Union, to withdraw from membership.
A number of interested parties were joined to their action including the French based group Fair Deal for Expats, and the case has become a landmark for UK constitutional law.
The question which the claimants put to the court was whether the government alone, acting with the Crown’s pregogative powers, was entitled to implement the result of a Referendum whose legal effect was not actually binding but “advisory”, according to the Referendum Act 2015. Could the government simply forge ahead as though an irrevocable decision had been made by “the British people”, even though the vote was won by a small margin, 52% of those who actually voted, and even though this represented only one third of those entitled to vote? Even though many British citizens were excluded from voting having lived outside the UK for more than 15 years?
The government argued that it could. However, the court held ultimately that prerogative powers could in fact only be used with respect to rights and obligations created as a matter of international law. As soon as individual rights protected by domestic law are affected, Parliament must be consulted and be part of the process.
The court discussed three categories of rights arising under EU law which would be affected by a decision to leave the EU. The first were those capable of replication in UK law such as the Working Time Directive. The second category included rights enjoyable in other member states, such as the freedom of movement and freedom to establish a business.
The government conceded on the point that some individual rights in a third category would in fact be lost. These included the right to be selected and to be elected to the European Parliament, and to vote in those elections, or to seek a ruling from the European Court of Justice or to apply for a ruling from the European Commission for a remedy for example relating to competition law or environmental protection. This category of rights were those that cannot be replicated in domestic UK law and would certainly be lost upon withdrawal. Therefore given that it could not be denied by the government that individual rights would be affected, the Court was bound to rule in favour of the Claimants.
The Supreme Court will hear the “leap-frog” appeal of the UK government over 4 days from 5th December 2016, and the result is expected in January 2017.
