High Court decides that parliamentary authority is required to trigger Article 50 TEU

  • Insight

03 November 2016

Following a 3 day hearing in Court in October 2016 about whether the UK Government can ‘trigger’ Article 50 of the Treaty on European Union (TEU) without authority from the UK Parliament, the High Court in England has delivered its judgment in favour of the claimants who were challenging the UK Government’s right to use the Royal Prerogative. It decided that the UK Government cannot lawfully trigger Article 50 of the European Union (EU) using Royal Prerogative powers and that it must obtain parliamentary authority before doing so.

The parties who had raised the judicial review proceedings against the UK Government sought clarification as to whether a UK Government Minister could trigger Article 50, to commence the withdrawal process of the UK from the EU, without seeking authority to do so from Parliament by way of an Act of Parliament. They asked the Court to clarify the constitutional requirements for the UK to “decide” to leave the EU and to then “notify” that decision to the EU, in accordance with Article 50 of the TEU.

In the proceedings, which named the Secretary of State for Exiting the European Union, David Davis, as the Defendant and which were heard in front of three judges (Lord Chief Justice Lord Thomas, Master of the Rolls Sir Terence Etherton and Lord justice Sales), it was argued that no party considered the result of the EU referendum on 23 June 2016 was sufficient to meet the UK’s “constitutional requirements” referred to in Article 50 for EU withdrawal. However, they called on the the Court to answer the fundamental constitutional question as to whether constitutional authority to make the decision to withdraw from the EU rests with the elected Parliament, or with Government Ministers in exercise of Crown prerogative powers.

The claimants stated that: “This challenge is concerned with who makes the “decision” that the UK shall withdraw from the EU, not with who ultimately notifies that decision to the European Council. The notification itself is likely to be a matter for the executive, acting on Parliamentary authority conferred by statute, and having regard to the terms of Parliament’s decision. …The question for the Court is whether a Parliamentary decision… is constitutionally necessary before a minister can trigger the process of withdrawing the UK from the EU by notifying the European Council pursuant to Article 50(2) TEU.”  The High Court has answered that question in the affirmative. The UK Government has the right to appeal the decision to the UK Supreme Court. If it does appeal, it is likely that the case will be heard in the UK Supreme Court in early December 2016.

Further information

For more information, please contact Fiona Killen or Ailidh Callander.