The High Court ruled this morning in favour of the claimant. Lord Thomas, the Lord Chief Justice, held that the government does not have a prerogative power to give notice under Article 50 to leave the EU.
So what are prerogative powers? Prerogative powers are those powers formerly exercised by the absolute monarchs which parliament has left undisturbed. These powers include the summoning and dissolving of Parliament, the deployment of military services, issuing of passports and, importantly, entering into and withdrawing from international treaties. These powers are no longer exercised personally by the Queen, but by Her Majesty’s Government acting on her behalf.
The Court based its decision on the basis that the ‘most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses’. It is equally true that normally the conduct of international relations and treaties are within the government’s prerogative powers.
In this case, the Court held that once notice is given under Article 50, the domestic law will be changed. As a result, this could not be achieved by reliance on the prerogative powers. It ruled that the European Communities Act 1972 contains no terms which can be interpreted as allowing the Crown to exercise a prerogative power to exit the European Community Treaties (now the EU Treaties).
The Government has confirmed that it will appeal this decision to the Supreme Court. It is anticipated that the hearing will take place before the end of 2016.
© Chambers of Lawrence Power