November 17, 2018

November 16, 2018

Subscribe to Latest Legal News and Analysis

November 15, 2018

Subscribe to Latest Legal News and Analysis

November 14, 2018

Subscribe to Latest Legal News and Analysis

UK Government Must Consult Parliament Before Triggering Withdrawal From European Union, Court Rules

On November 3, a three-member panel of the High Court of Justice’s Queen’s Bench Division ruled that government ministers do not have the unfettered right to trigger the United Kingdom’s withdrawal from the European Union by submitting notice under Article 50 of the Treaty on European Union. In a strongly worded opinion citing English case law from as far back as the early 1600s, the court concluded that longstanding constitutional arrangements limit the Crown’s—and therefore ministers’—“prerogative powers” to alter UK domestic law unilaterally. In defense, the government argued that the Article 50 notice represented the exercise of the Crown’s traditional prerogative powers in the field of international relations to conclude treaties. However, the judges were persuaded by the claimants that the act of submitting an Article 50 notice would lead inevitably to the UK’s withdrawal from the EU, which would necessarily cause the rights afforded to UK citizens under EU law— which form part of UK domestic law due to the European Communities Act 1972 (ECA)—to be withdrawn, and on matters of UK domestic law Parliament is sovereign.

In the contest between the Crown’s prerogative powers and the sovereignty of Parliament, the judges relied on the constitutional principle that, unless Parliament legislates to the contrary, the Crown does not have the authority to alter UK domestic law through its prerogative powers. The court then found that, in relation to statutes of “special constitutional significance” such as the ECA, there is a heightened burden in demonstrating Parliamentary intent to permit the Crown to unilaterally exercise its prerogative powers. Finding no evidence of such intent, the court then held that the Crown must give way to Parliament. The court did not, however, specify the form of relief to be granted. The government has announced that it will appeal the court’s ruling; the case has been fast-tracked to the UK Supreme Court, which is expected to hear arguments in early December.

The judgment in the case R (Miller) v. Secretary of State for Exiting the EU is available here.

©2018 Katten Muchin Rosenman LLP

TRENDING LEGAL ANALYSIS


About this Author

David A. Brennand, Financial Services Lawyer, Katten Muchin Law Firm
Partner

David Brennand is a partner in the Financial Services practice in Katten Muchin Rosenman UK LLP. David provides advice to a wide range of clients active in asset management on a broad spectrum of matters pertinent to their operations, with a particular focus on advising asset managers on the structuring and ongoing operation of hedge and other alternative fund structures investing in a diverse range of asset classes.

As well as advising on fund structuring and their ongoing operation, David's expertise also extends to advising asset managers and...

44-0-20-7776-7643
Carolyn H. Jackson, International Attorney, Katten Muchin law firm
Partner

Carolyn Jackson is a partner in Katten Muchin Rosenman UK LLP and is a Registered Foreign Lawyer. She provides US financial regulatory legal advice to a broad range of market participants, including commercial banks, investment banks, investment managers, broker-dealers, electronic trading platforms, clearinghouses, trade associations and over-the-counter derivatives service providers.

Carolyn guides clients in the structuring and offering of complex securities, commodities and derivatives transactions and in complying with US securities and commodities laws and regulations. 

+44 0 20 7776 7625
Nathaniel Lalone, Katten Muchin Law Firm, Financial Institutions Attorney
Senior Associate

Nathaniel Lalone, a partner at Katten Muchin Rosenman UK LLP, has a broad range of experience in the regulation of financial products and financial markets, and frequently provides regulatory and compliance advice to trading venues, clearing houses and buy-side firms active in the over-the-counter (OTC) derivatives, futures and securities markets. He is actively involved in advising clients on the implementation of MiFID 2 and MiFIR in the European Union as well as the international reach of US financial services regulation. He also has significant experience with structuring...

+44 0 20 7776 7629
Neil Robson, private equity fund managers counselor, Katten Law Firm, London
Partner

Neil Robson, a regulatory and compliance partner with Katten Muchin Rosenman LLP, focuses his practice on counseling hedge and private equity fund managers and other investment advisers on operational, regulatory and compliance issues. He regularly addresses Financial Conduct Authority (FCA) and EU authorization and compliance under both the EU Alternative Investment Fund Managers Directive (AIFM Directive) and MiFID, cross-border issues in the financial services sector, market abuse, anti-money laundering and regulatory capital requirements, formations and buyouts of...

44-0-20-7776-7666