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Supreme Court rules Government cannot trigger Article 50 without consulting Parliament

On 24 January 2017 the Supreme Court ruled that the Government cannot trigger Article 50 without an Act of Parliament.[1] 

In so doing, the Supreme Court upheld the High Court’s judgement of 3 November 2016 which we reported on previously[2].  The Secretary of State for Exiting the European Union had appealed the High Court’s ruling and the principal question in the appeal before the Supreme Court was whether a notice of intention to withdraw from the EU could, under the UK’s constitutional arrangements, lawfully be given by Government ministers without prior authorisation by an Act of Parliament.  The Supreme Court’s answer was no. 

The Supreme Court held that, under the UK’s constitutional arrangements, an Act of Parliament is required to authorise ministers to give notice of the UK’s intention to withdraw from the EU.  It held that it would be unlawful for the Government to rely on its executive power given by the royal prerogative to implement the outcome of the June 2016 referendum without consulting Parliament.  While the Government generally has a prerogative power to change treaties, the Supreme Court ruled that the Government’s prerogative powers may not extend to acts which result in a change to UK domestic law.  The Supreme Court held that withdrawal from the EU Treaties makes a fundamental change to the UK’s constitutional arrangements and the UK constitution requires such changes to be effected by Parliamentary legislation. 

This judgement by the Supreme Court – the final court of appeal in the UK for civil cases - affirms the ruling of the High Court and dismisses the appeal by the Secretary of State for Exiting the European Union by a majority of 8 judges to 3. 

In addition, the Supreme Court considered the ‘devolution issues’, in other words whether the terms of the Northern Ireland Act 1998 and associated agreements, require primary legislation and the consent of the Northern Ireland Assembly and/or the people of Northern Ireland before a notice of intention to withdraw from the European Union can be served by the UK.  The judges of the Supreme Court reached a unanimous decision on this point and concluded that the devolved legislatures do not have a veto on the UK’s decision to withdraw from the UK. 

It appears that the Government has already prepared draft legislation in the event that its appeal was rejected and the Prime Minister has confirmed that the Government will publish a White Paper setting out its plan for leaving the EU.  The White Paper is expected imminently.  The ‘Brexit bill’ that follows is expected to be short and is expected to be given special priority by Parliament.  The Supreme Court’s ruling means that the bill must be read, debated and examined, including discussing proposed amendments, in both the House of Commons and the House of Lords before it can pass into law. 

For more information, please contact Shirine Corboy.

[1] https://www.supremecourt.uk/news/article-50-brexit-appeal.html, R (on the application of Miller and another) (Respondents) v Secretary of State for existing the European Union (Appellant), Reference by the Attorney General for Northern Ireland – In the matter of an application by Agnew and others for Judicial Review and Reference by the Court of Appeal (Northern Ireland) – In the matter of an application by Raymond McCord for Judicial Review, on appeals from [2016] EWHC 2768 (Admin) and [2016] NIQB 85