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On 3 November 2016, the High Court of England and Wales handed down a judgment in which it held that the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty on European Union for the UK to withdraw from the European Union.

The Government issued a press release later that day, stating that it was “disappointed” in the judgment and intended to appeal. Theresa May, the Prime Minister, has said that the Government’s planned timetable to notify under Article 50 before the end of March 2017 is unchanged by the High Court judgment. David Davis, the Secretary of State for Exiting the European Union, made a statement to the House of Commons on 7 November 2016, in which he outlined the Government’s position following the judgment, and the steps it had already taken towards launching an appeal to the Supreme Court. Whilst maintaining the position that the power to trigger Article 50 lay with the Government, Mr Davis said that there was an important role for Parliament in the process, with time allowed for debates and parliamentary statements on Brexit, committee scrutiny, and a Bill to be introduced in the next parliamentary session to repeal the European Communities Act 1972.

While some parties at Westminster and in the devolved assemblies, such as the Scottish National Party (SNP), the Green Party, Plaid Cymru and the Social Democratic and Labour Party (SDLP) welcomed the judgment, UKIP’s acting leader Nigel Farage spoke of his fear that attempts would be made to block or delay the triggering of Article 50. Keir Starmer, the Shadow Secretary of State for Exiting the European Union, said that Labour would not vote down Article 50, but he pressed the Government to answer “basic questions” about the future relationship it sought with the EU. Nick Clegg, the Liberal Democrats’ spokesman on Exiting the European Union, said he would work with MPs from all parties to amend any legislation the Government brought forward as a result of the Court judgment to ensure that the Government would have to pursue “a soft rather than a hard Brexit” and that the British people would have a say on the final terms of the UK’s departure at the end of the negotiation process.

The Supreme Court confirmed on 8 November 2016 that it had granted the Government permission to appeal the case. It has set aside four days, 5–8 December 2016, to hear the appeal, with judgment to follow at a later date, probably in the New Year.  The Lord Advocate (the chief legal officer of the Scottish Government) and the Counsel General for Wales have both indicated their intention to make formal applications to intervene in the UK Government’s appeal to the Supreme Court. The Attorney General for Northern Ireland is reportedly seeking to refer to the Supreme Court one application for judicial review of the Government’s intention to use the royal prerogative to invoke Article 50. This was one of two applications dismissed by the High Court of Justice of Northern Ireland on 28 October 2016 (although the grounds of challenge in these applications that overlapped with those to be dealt in the Miller case before the High Court of England and Wales were held over in the Northern Ireland court pending the outcome of Miller). 

It has been reported in the media that the Government has already begun drafting a Bill authorising the triggering of Article 50 in case it loses its appeal. Lord Bridges of Headley, Parliamentary Under Secretary of State at the Department for Exiting the European Union, dismissed “speculation about a Bill at this juncture [as] just that—speculation”.

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