“The Brexit Case” – Is this an end to Brexit?

4 November, 2016

What does the case of R. (on the application of Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 mean and what are its implications for Brexit?


What were the judges being asked to decide?

As set out in paragraph 4 of the judgment “The sole question in this case is whether, as a matter of the constitutional law of the United Kingdom, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union.


What was decided?

By passing the European Communities Act 1972 (and subsequent amendments) parliament has decided to give effect to European Law. There was nothing in this legislation to enable the government (without a further act of parliament) to repeal this legislation and the prerogative powers of the government do not extend this far. Paragraph 93(7) of the judgment states:

            “… Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again.

In essence, the court upheld the importance of parliament in making and un-making the laws of this country and clarified the limits of the executive. The government has sought to appeal this decision, which will be heard in the Supreme Court.


Is this an end to Brexit?

No, but the court has held that there must be an act of parliament to trigger Article 50, which could delay the process. The government has stated that it plans to trigger Article 50 by the end of March 2017, whether this is possible will depend on: 1) how long it takes to pass this legislation; and/or 2) the outcome of their appeal to the Supreme Court.


A copy of the judgment and a summary of the court’s findings can be found on the Judiciary’s website https://www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-state-for-exiting-the-european-union/


If you have a query about any aspect of Brexit please call us on +44 (0)1892 515 121.