The U.K. High Court on November 3 held that the U.K. Secretary
of State does not have the power under the Crown's prerogative
to give notice pursuant to Article 50 of the Treaty on the European
Union for the United Kingdom to withdraw from the European
Union. According to the Court's ruling, to give such
notice and thus commence the process of withdrawal from the
European Union, or "Brexit," the U.K. Government must
first obtain the authorization of the U.K. Parliament.
Prime Minister Theresa May had previously announced her
intention to trigger the Brexit process by March 2017. The
High Court's decision may make it difficult for her to achieve
The U.K. Government has announced its intention to appeal the
decision. Because of the significance and urgency of the
matter, the appeal will "leapfrog" the Court of Appeal
and be heard - reportedly in early December - by the U.K. Supreme
Court. It is not yet clear when the Supreme Court might
render its decision. The U.K. Government has found itself in
the unenviable position of championing the authority of the Prime
Minister to act without the approval of Parliament following the
outcome of a referendum that, for many, was a vote in favor of
reasserting control by repatriating legislative powers from
Brussels to the United Kingdom (and hence Parliament).
Over the course of the past few months since she became Prime
Minister, Theresa May has taken the position that she intends to
give notice under Article 50 without parliamentary
authorization. The requirement to obtain parliamentary
approval is politically challenging. Before the referendum,
479 members of the House of Commons, including 185 members of the
Conservative Party, had expressed their support for remaining
within the European Union, while only 138 had supported
Brexit. To obtain parliamentary support for giving the
notice, Theresa May will need to convince a significant percentage
of those who supported the "Remain" campaign to switch
sides in deference to the outcome of the referendum, and also to
persuade the House of Lords (which may prove an even trickier
The High Court's ruling acknowledged as settled that the
conduct of international relations and the making and unmaking of
treaties on behalf of the United Kingdom are regarded as matters
for the Crown - or in practice the executive government of the day
- in the exercise of the Crown's prerogative powers.
Nevertheless, in deference to another bedrock principle of U.K.
constitutional law - the supremacy of Parliament - the High Court
concluded that Parliament had intended E.U. rights to have effect
in domestic law and that this effect should not be capable of being
undone or overridden by action taken by the executive in exercise
of the so-called "royal prerogative." Noting the
profound effects that the European Communities Act 1972, which
brought the United Kingdom into the European Union, had on domestic
law, and the similarly profound and far-reaching effects that
Brexit would have on citizens' rights under domestic law, the
High Court further ruled that the executive could not (without
parliamentary authorization) give notice under Article 50 that
would lead inexorably to the loss or modification of those
The ruling also comes against the backdrop of repeated calls,
including from some within the Conservative Party, for greater
transparency in relation to the Government's priorities and
strategy for post-Brexit trade and other relations with the
European Union. In recent days, for example, the Government
has provided written assurances to Nissan that induced it to commit
to further investment in its U.K. automotive manufacturing
operations (which could be badly hurt by loss of access to the
European Union's single market), but has refused to disclose
the specific nature of those assurances. Similarly, press
reports emanating from Ireland suggest that the U.K. Government has
provided assurances that the previous "hard" border
between the Republic and Northern Ireland would not be reintroduced
upon Brexit, but the United Kingdom has declined so far to clarify
the nature of those assurances. These and many similar
questions are likely to be raised in the debates that would
inevitably surround any attempt to obtain Parliament's
authorization to deliver notice under Article 50.
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