Brexit Judgment: UK Supreme Court Dismisses The Government's Appeal

Parliament must authorise notice of withdrawal from the EU under Article 50

Summary

The UK Supreme Court has yesterday, by a majority of 8-3, dismissed the Government's appeal against the Divisional Court's judgment in November 2016 which held that the Government could not give notice of its intention to withdraw from the EU under Article 50(2) of the EU pursuant to its powers under the royal prerogative to withdraw from international treaties. The Supreme Court has held that notice under Article 50 must be authorised by an Act of Parliament. This will require a bill to be passed before both Houses of Parliament, although the Court has made clear that a "very brief statute" would suffice: what matters is not the length or complexity of the statute but rather the fact that it will be primary legislation enacted by the Queen in Parliament. In light of this, attention may now turn to Ireland where a judicial review, aimed at establishing that notice under article 50 can be withdrawn, is about to be launched.

The issue before the Supreme Court and the arguments

As the Supreme Court has made clear throughout this process, and as it reiterated, the question before the court concerned the steps required as a matter of UK domestic law before the process of leaving the European Union can be initiated pursuant to Article 50. Article 50(1) says, "Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements." The Supreme Court judgment specifies what those requirements are.

The primary argument of the claimants, which was accepted by the majority, was summarised by Lord Neuberger at paragraph 36 of the Judgment:

"36. The applicants' case in that connection is that when Notice is given, the United Kingdom will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the United Kingdom, whether or not Parliament repeals the 1972 Act. As Lord Pannick QC put it for Mrs Miller, when ministers give Notice they will be "pulling ... the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply". In particular, he said, some of the legal rights which the applicants enjoy under EU law will come to an end. This, he submitted, means that the giving of Notice would pre-empt the decision of Parliament on the Great Repeal Bill. It would be tantamount to altering the law by ministerial action, or executive decision, without prior legislation, and that would not be in accordance with our law."

In other words, rights were granted by Parliament through EU membership and they were therefore Parliament's rights to take away, so the argument went.

The Government did not dispute that significant changes would follow from withdrawing from the EU Treaties but argued that this did not prevent the Government giving notice because the 1972 Act had not excluded the prerogative power to withdraw from treaties and that the 1972 Act gave effect to EU law only insofar as the EU Treaties required it.

The judgment of the majority

The judgment of the majority was given by the President of the Supreme Court, Lord Neuberger. Lord Neuberger examined the history of the UK's involvement with the EU. As one would have expected, the various European Treaties, such as the Treaties of Maastricht, Amsterdam, Nice and Lisbon, had all been ratified by Parliament. The UK legislation ratifying these Treaties had often stated that further changes should not be ratified "unless approved by an Act of Parliament" or imposed restrictions relating to amendments to the EU Treaty, including approval by an Act of Parliament (see paragraphs 24-30).

(i) The European Communities Act 1972

Lord Neuberger explained the constitutional significance of the 1972 Act, which was, in constitutional terms, unprecedented because it not only made EU law a source of UK law, but actually takes precedence over UK law, including Acts of Parliament. However, he emphasised that EU law only enjoyed this automatic and overriding effect by virtue of the 1972 Act and thus only while it remains in force and accepted that EU law would not apply if the UK ceased to be bound by the EU Treaties. But he held that (see paragraphs 77 and 78 of the Judgment):

"77. We...