Judicial Review and the Process of Leaving the European Union

Judicial Review and the Process of Leaving the European Union

Unless you have been living under a rather large rock as a law student, it will have been impossible to escape the recent High Court decision in R (on the application of Miller and Others) v Secretary of State for Exiting the European Union. For those who have been living under the proverbial rock, this case concerns whether or not the government has the ability to trigger Article 50 of the Lisbon Treaty. If, as the High Court have ruled to be the case, the government does not have such an ability within its prerogative powers. Instead, it should be left to Parliament to make the decision whether or not to trigger the formal process of Britain leaving the European Union. The government, somewhat unsurprisingly, is seeking to challenge the decision of the High Court by leap-frogging the Court of Appeal and appealing directly to the Supreme Court. The case is due to be heard on Monday 5 December 2016. Whatever the outcome, it will start Britain along a seemingly irreversible track – the end destination being complete withdrawal from the EU.

This article will not consider whether withdrawal from the EU is the right move, nor will it seek to determine who should trigger Article 50. Instead, it will briefly look at the process of judicial review in relation to the case of Miller.

Judicial review is the method by which the courts hold the executive and other public bodies to legal account for their decisions. It ties in neatly to the principles of parliamentary supremacy and the rule of law. The issue itself must be within the sphere of public law and justiciable at first glance. Clearly, these requirements are met in Miller. Neither is there a problem concerning many procedural requirements of judicial review.

In addition to the requirements already mentioned, judicial review applications require a locus standi (standing). This means that the party bringing the action must have a ‘sufficient interest’ in the case. In other words, the decision of the public body must have a significant impact on them. However, in Miller, the applicants are an amalgamation of individuals and parties concerned with keeping Britain in the EU. Are they themselves genuinely affected by the government’s action of triggering Article 50? Yes, they will be affected after the move. Yet the action itself will only pave the way for negotiations concerning Britain pulling out of the EU. Conversely, if the applicants in Miller can bring a claim, what’s to stop the rest of the country from doing so? Another cornerstone of judicial review is the notion that the courts should protect public bodies from vexatious claims. Therefore it seems strange that standing was not considered to be an issue by the court.

Aside from standing, it is also interesting to consider that this claim for judicial review was made with regard to a prospective decision being made. The majority of actions are founded on past decisions of public bodies as it is only after something has happened can it be ascertained whether the authority acted correctly or not. Patently, Gina Miller and her fellow applicants are claiming that the government would be wrong to notify the European Council of its intention to leave without referring the matter to Parliament. This raises a ‘what if’ question. What if the government had been considering placing the decision before Parliament? Such a decision would obviously nullify these proceedings. Further, applying for judicial review after the government has made its decision would run counter to the purpose of proceedings and the underlying intentions of the applicants.

An application for judicial review also requires a ground on which the review is to be based. The three grounds are: illegality; irrationality; and procedural impropriety. Whilst it is not perhaps clear-cut under which ground Miller falls, it is perhaps safe to assume that the High Court considered the case to hinge on a potential procedural impropriety in the future.

Has the Miller case simply been allowed to bypass the necessary safeguards for judicial review just so that the courts can decide on the matter? Clearly there is a need for legal certainty on the matter concerning the government’s use of its prerogative powers, but has this certainty come about in a knee-jerk fashion? These are simply hypotheses and noteworthy considerations arising out of the Miller case in relation to the public law sphere of judicial review. Since the High Court has already presided over the matter and the Supreme Court is waiting in the wings for its chance to strike, it is evident that the considerations in this article will all be addressed at some stage.

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