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Legal Method Case Comment

LEGAL METHOD CASE COMMENT 

 

The case comment is on the following case: R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) which is related to the exit by the Britain from the European Union. The issue is related to the UK’s constitutional law, especially the application of Article 50 which is related to exercising the Crown’s prerogative powers (European Parliament, 2016). The areas covered are: facts of the case; the relevant legal issues raised in the case, analysis of the legal issues raised in the case, and a critical analysis of the legal issues.

Summary of the Pertinent Facts of the Case

Miller together with the Interested Parties as well as Interveners brought the application for judicial review. The claim made was that the UK government was not in a position to withdraw from the European Union without consideration of the primary legislation.

Majority of the people in the UK on 23 June 2016 voted in the favor of leaving the EU. Prior to the Brexit EU referendum, it was stipulated that the will of the people as a result of the vote would be respected. As a result, the e EU Referendum Act 2015 was passed by the parliament.

Article 50 of the Treaty on the Functioning of the European Union sets out the process through which a Member State willing withdraw from the union has to follow (Bowden, 2016). According to Miller and interest parties, the UK government was required to obtain Parliamentary approval prior a notice was sent in accordance to Brexit article 50.  The withdrawal from EU is governed by article 50 of the TFEU.

The ruling by the Court was that the UK Government did not have the necessary authority under the Crown’s prerogative to offer notice to the UE in pursuant to Article 50, with regard to its exit from the EU (Courts and Tribunals Judiciary, 2016). In addition the argument put forward was not accepted by the Court because 1972 Act did not support it.

 Legal Issues Raised in the Case

The legal issues raised are: (1) whether the Crown has the prerogative powers to offer exit notice under Article 50 for the UK to stop being a member of the EU; and (2) the UK Government did not give effect to the decision and the will of the people to cease from being a member of the EU.

An Analysis of the Relevant Legal Issues Raised in the Case

The parliament according to the UK’s constitution is sovereign by its own and it has the power to create and unmake any law. As such, Parliamentary sovereignty is not subjected to displacement by the Crown through the exercise of its prerogative powers. Thus, the Crown, which is the government of the day, lacks the authority to employ its prerogative powers without the consent of the Parliament. Outside the domestic boundaries, the Crown is powerless and it cannot change the common law or the constitutional law (Royal Court of Justice, 2016). In the R (Miller) v Secretary of State for Exiting the European Union [2016] case, the government accepted that in case a notice was provided under article 50, then an effect to change the domestic law would be experienced. Nonetheless, Article 50 of the TEU stipulates that any Member State has the power to cease from being a member of the EU in agreement to it requirements of its constitution (European Parliament, 2016; Wilkinson, 2016). In addition, a notification of the intention must be made to the European Council. The Parliament did not provide the Crown with prerogative power to make a choice on whether to leave EU or not.

Critical consideration of the legal Issues Raised

The issue raised was centered on article 50 of TEU and the sovereignty of the Parliament as well as the powers of the Crown. Lord Thomas noted that the UK as a member of the EU was required to file a notice and that the Crown under the international law could be allowed to exit. It was right for the court to not accepting the argument made by the government. This is because the 1972 Act did not have any text that supported the Government agreement. The judgment was also appropriate because under the constitution, the Government has no power to provide notice to Article 50 for the withdrawal of UK from the EU. Therefore, the secretary of the State did not have the required power to provide notice in accordance to Article 50 of the TEI with regard to the Brexit.

 

 

References List

Browden, D. (2016) UK Government must obtain Parliamentary approval before the Brexit Article 50 notice is sent [Online] Available at: < http://www.ewriter.eu/articles/BrexitAdminCtOutcome.pdf> (Accessed 2 Dec. 2016).

Courts and Tribunals Judiciary. (2016) R (Miller) -v- Secretary of State for Exiting the European Union – Accessible [Online] Available at: < https://www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-state-for-exiting-the-european-union-accessible/> (Accessed 2 Dec. 2016).

European Parliament. (2016). Article 50 TEU: Withdrawal of a Member State from the EU [Online] Available at: < http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf (Accessed 2 Dec. 2016).

Royal Court of Justice. (2016) The Queen on the application of Gina Miller, Deir Tozetti Dos Santos v The Secretary of State for Exiting the European Union v Grahame Pigney & Others AB, KK, PR and Children, Mr George Birnie & Others [Online] Available at: < http://www.transatlanticbusiness.org/wp-content/uploads/2016/11/Judgment-R-Miller-v-Secretary-of-State-for-Exiting-the-EU-20161103.pdf (Accessed 2 Dec. 2016).

Wilkinson, M. (2016) What is Article 50? The only explanation you need to read. [Online] Available at: < http://www.telegraph.co.uk/news/0/what-is-article-50-the-only-explanation-you-need-to-read/ (Accessed 2 Dec. 2016).

 

 

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