The UK Supreme Court, in a majority of 8 to 3, has ruled that an Act of Parliament is required to trigger the notice whereby the UK will withdraw its membership from the European Union (the EU). The judgment follows the June 2016 referendum in which 51.9% of voters voted to leave the EU. The Supreme Court also unanimously held that the UK’s devolved legislatures (Scotland, Wales and Northern Ireland) are not required to authorise notice to leave the EU being served.
Under Article 50 of the Treaty on the European Union, if an EU member State decides to withdraw from the EU in accordance with its own constitutional requirements, it should serve notice of intention and the EU Treaties will cease to apply after two years. The nature of the UK’s constitutional requirements for triggering Article 50 were at issue here. Following the June referendum, the UK government proposed to use its prerogative powers to serve the requisite notice. The applicants, Gina Miller and Deir Dos Santos initiated legal proceedings arguing that notice cannot be lawfully given by government ministers without the authorisation of an Act of Parliament. The applicants in effect argued that the Government – cannot use its ‘prerogative powers’ to remove rights that exist in domestic law unless Parliament has clearly allowed it to. EU membership had introduced important new rights under domestic law for example; relating to employment (maternity leave and maximum working hours), travel around Europe and protection of personal data. It was argued that the triggering of Article 50 by the Government would lead to the loss of those rights.
The Divisional Court of England and Wales found in favour of the applicants, holding that prior authorisation had to be given by Parliament. The Secretary of State appealed to the Supreme Court. In addition, an issue was referred to the Supreme Court on application of the Attorney General for Northern Ireland, as to whether the terms of statutory devolution required consultation or authorisation of devolved legislatures before serving notice.
In handing down its judgment, the Supreme Court first ruled that authorisation of the devolved legislatures was not necessary. In reaching that conclusion while the Supreme Court stressed that it did not underestimate the importance of constitutional conventions, some of which had a fundamental role to play; but that “the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary which is to protect the rule of law”.
The Court then turned to the question of whether an Act of Parliament was required to authorise cabinet to give notice of intention to leave the EU. Stressing that its decision was nothing to do with the merits of Brexit, a majority of the Supreme Court held that the terms of the European Communities Act 1972, which provided for the UK’s accession to the EU, are inconsistent with the exercise by cabinet of any power to withdraw from the EU Treaties without the authorisation of an Act of Parliament.
It was held that withdrawal from the EU represents a fundamental change to the UK’s constitutional arrangements and would remove some existing domestic rights of UK residents. As such parliamentary legislation was required to effect this change. Lord Neuberger stressed that when enacted the European Communities Act could have expressly authorised ministers to initiate withdrawal but did not do so. Consequently, the result of the referendum must be implemented by an Act of Parliament, as the only mechanism permitted by the Constitution.
Three of the Supreme Court judges delivered dissenting judgments, with Lord Reed arguing that the European Communities Act does not affect the Crown’s exercise of prerogative powers in respect of EU membership.
Click here for the full judgement in R v Secretary of State for Exiting the European Union.
Click here and here for further commentary on the decision.