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Lawyers for Britain's intervention in the Supreme Court

On 3rd November 2016 the Divisional Court handed down its judgment in R (Miller) -v- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). The court, to the surprise of most informed observers, decided that it is outside the prerogative powers of the Crown for notice to be given under Article 50 of the Treaty on European Union to withdraw from the European Union.

On 8 November 2016, the Supreme Court granted permission to appeal to the government, and announced that the case would be heard by the full Court of 11 Justices from 5 to 8 December 2016.

Having reviewed the Judgment of the Divisional Court and the arguments presented by the parties, Lawyers for Britain decided to apply to the Supreme Court for permission to intervene in the appeal as an organisation seeking to make submissions in the public interest. Our application for permission to intervene was granted by the Supreme Court on 25 November 2016, and our full Lawyers for Britain Supreme Court Submissions were filed on 29 November 2016. On the morning of the last day of the hearing (Thursday 8 December) we also filed our Supplemental Submissions which respond to some important points which emerged in the course of oral argument in the Supreme Court, and on 22 December 2016 we filed a Further Supplemental Submission to rebut some contentions by other interveners.

We presented arguments which were additional to or different from the arguments put forward by the government, but which supported the conclusion that the appeal should be allowed. We thought that it was important in the public and national interest that the Supreme Court should be in a position properly to consider those arguments.

The summary of our arguments as set out on our Application to Intervene was as follows:-
"First, even if the European Communities Act 1972 did by implication impose a restriction on the prerogative power of the Crown to withdraw the UK from the Communities (if withdrawal was permissible under international law, which was at the time doubtful, see Costa v ENEL (Case 6/64) [1964] ECR 585, 594), the effect of the European Union (Amendment) Act 2008 (“the 2008 Act”) was to negative any such restriction on the exercise of the wholly new explicit power of withdrawal from the EU under Article 50 of the Treaty on European Union. The 2008 Act:

(1) inserted the Lisbon Treaty, and accordingly Article 50, into the “Community [renamed EU] treaties” to which the ECA 1972 gave effect; and

(2) in section 6, imposed explicit Parliamentary control over the exercise of the prerogative to invoke several powers introduced by the Lisbon Treaty, including Article 48(6) TEU on simplified treaty revision, but not over Article 50 on  withdrawal.

Parliament must have been aware of the important new power in Article 50 and decided by contrast that its exercise should not be subject to Parliamentary control. The European Union Act 2011 further elaborated the system of Parliamentary control over prerogative acts and thereby further confirmed Parliament’s intention not to fetter the prerogative in the exercise of Article 50.

Secondly, and in any event, the effect of the European Union Referendum Act 2015, read against the background of the ECA 1972 and the 2008 and 2011 Acts, was to negative any such restriction which might otherwise have arisen, if the result of the referendum was a majority to leave the European Union. As Lord Dyson MR recently held “the referendum (if it supports a withdrawal) is an integral part of the process of deciding to withdraw from the EU” in accordance with the UK’s constitutional requirements as referred to in Article 50: Shindler v Duchy of Lancaster [2016] EWCA Civ 469 at [19]."
In intervening in the appeal, we believe that we were seeking to represent the wider interests of all who participated in the Leave campaign and of the 17.4 million people of this country who voted to leave the European Union. The referendum was authorised by Parliament to give effect to a clear and unequivocal pledge in the General Election manifesto of the winning party that the people would decide (not merely advise on) the question of our membership of the EU. We believe that the outcome gave rise to a clear and unambiguous constitutional mandate to implement the people's decision to leave which must be respected by government and Parliament, and reject the suggestion that the referendum was merely "advisory".

We extend our thanks to all who have contributed an immense amount of their time and legal expertise to our efforts, as well as to everyone who has given a donation, which have allowed us to undertake this important initiative. Our donations have come from a large number of individuals and have ranged from 10 up to much larger sums.

As we explain in our comment on the Judgment, it seems clear that our submissions played an important role in the thinking of the Court.