The crux of the case was whether the government could trigger Article 50 using its prerogative powers — the residue of powers once held by the monarch, which covers the making and unmaking of international treaties. The government said it did have these powers.
The case is of huge historic importance because it defines the extent of royal prerogative in Britain’s uncodified constitution, which has been built up over many centuries.
Lord Pannick, Ms Miller’s barrister argued that by triggering Article 50, Mrs May would in effect be stripping UK citizens of rights conferred on them by parliament when it passed the European Communities Act 1972 to join the bloc.
If Britain left the EU, these “fundamental” rights will be unable to be restored by parliament, even if it passed new laws, and the government could not take away these rights “unilaterally” without a vote of MPs, he argued.
Some rights — such as freedom of movement in the EU and the right to take a legal case to the European Court of Justice in Luxembourg — would be taken away from British citizens forever if Article 50 is invoked, he said.
The Lord Chief Justice, one of three senior judges hearing the case, occasionally said he was “baffled” by some of the government’s arguments — particularly on whether EU withdrawal would bring an end to rights conferred by domestic legislation.
Lord Justice Thomas said in his ruling on Thursday that the rights given by parliament in the European Communities Act 1972 could not be taken away by the government — only by parliament.
“In our judgment, the clear and necessary implication from these provisions taken separately and cumulatively is that parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers.” he ruled.
The three judges rejected the government’s submissions.
The Supreme Court, which currently has 11 justices, usually sits on important cases with a maximum of nine judges.
However, it is thought all 11 justices might sit on this case because of its significance and to avoid accusations that a differently constituted panel would have come to different conclusions.
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