• In the case of R on the application of Miller v Secretary of State for exiting the European Union 2017 UKSC 5, it was held that the Government did not have the power under the Crown’s prerogative to give notice pursuant to TEU art.50(2) for the UK to withdraw from the EU. An Act of Parliament was required.

Facts of the Case

  • The UK had joined the European Communities in 1973.
  • The European Communities Act 1972 gave effect to Community law in the UK.
  • The EC was later superseded by the European Union.
  • A referendum took place in 2016 under the European Union Referendum Act 2015.
  • A majority voted for the UK to leave the EU.
  • A majority in Northern Ireland voted to remain.
  • Article 50 provided that member states could decide to withdraw from the EU in accordance with their own constitutional requirements.
  • It was common ground that notice could not be given conditionally and could not be withdrawn.
  • The Divisional Court held that, because prerogative powers could not be used to change domestic law, ministers could not serve notice without statutory authorisation.
  • The Northern Irish courts referred devolution questions, some specific to Northern Ireland and others raising more general issues regarding consultation with the devolved bodies.

Issues in R on the application of Miller v Secretary of State for exiting the European Union 2017 UKSC 5

  • Was it required by law for the government to give notice and approval before enforcing article 50.

Held by Supreme Court (UK)

  • Appeal dismissed, the Government could not issue a notice under article 50 without the approval of Parliament.

Lord Neuberger, President Lady Hale, Deputy President Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge

  • The 2972 Act was the conduit by which EU law was introduced into domestic law. It constituted EU law as an independent and overriding source of domestic law.
  • The rights incorporated into domestic law through s.2 varied with the UK’s obligations from time to time under the EU treaties, but provisions of a new treaty were only brought into domestic law once it was statutorily added to the definition of “treaties” in s.1(2).
  • Parliament could not have intended that s.2 continued to import EU law after the UK ceased to be bound by the treaties, but it did not follow that the Act accommodated the abrogation of EU law upon withdrawal from the treaties by prerogative act.
  • Section 2(1) and s.2(2) ensured that EU law as it stood from time to time was given effect in domestic law; it did not follow from that that prerogative powers could be used to cut off the source of EU law. Upon UK withdrawal, EU law would cease to be a source of domestic law. Even EU rules transposed into domestic law would have a different status: they would no longer be paramount, but subject to domestic repeal or amendment. Withdrawal was a significant constitutional change. If notice was given, that change would occur irrespective of whether Parliament repealed the Act. It would be inconsistent with fundamental principle for such far-reaching constitutional change to be brought about by ministerial action alone, particularly when the relevant source of law had been created by Parliament and given supremacy in the hierarchy of law sources. The prerogative to make and unmake treaties, which operated wholly on the international plane, could not be exercised in relation to the EU treaties in the absence of statutory sanction.
  • “Parliament has given to EU law in our domestic law, under the 1972 Act, is inherently conditional on the application of the EU treaties to the UK, and therefore on the UK’s membership of the EU. The Act imposes no requirement, and manifests no intention, in respect of the UK’s membership of the EU. It does not, therefore, affect the Crown’s exercise of prerogative powers in respect of UK membership. For essentially the same reason, the supposed analogy with De Keyser appears to me to be misplaced. Further, since the effect of EU law in the UK is entirely dependent on the 1972 Act, no alteration in the fundamental rule governing the recognition of sources of law has resulted from membership of the EU, or will result from notification under article 50. It follows that Ministers are entitled to give notification under article 50, in the exercise of prerogative powers, without requiring authorisation by a further Act of Parliament.” P.60

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