UK: UK Supreme Court: Parliament Must Approve Triggering Article 50

In perhaps its most high-profile constitutional law ruling of recent times, the UK Supreme Court has determined that the Government cannot unilaterally trigger Article 50 of the Treaty on the European Union ("Article 50") to commence the UK's withdrawal from the EU (known as "Brexit"). Any decision to do so can only be made by Parliament.

Introduction

On 23 June 2016, the people of the UK narrowly voted to leave the EU by a 52% to 48% majority. In early October 2016, incoming Prime Minister, Teresa May, delivered her pledge to invoke Article 50 by the end of March 2017. Yet, well in advance of that pledge, eagle-eyed constitutional law experts identified a subtle, yet important, question: absent prior Parliamentary authority, is that something the UK Government can actually do?

After a formal legal challenge was lodged in July 2016, the UK Supreme Court has now answered that question: no.

What is Article 50?

Article 50 is the provision of the Treaty of the European Union which sets out the procedure for the withdrawal of a Member State from the EU.

Once invoked, it starts a two-year period during which the EU and the Member State concerned must negotiate and conclude arrangements for the withdrawal. It was common ground between the parties to the litigation that the Article 50 notice, once triggered, is not reversible. The European Council, in agreement with the Member State concerned, can unanimously decide to extend this two-year period.

Crucially, the Article states that a Member State's decision to trigger Article 50 must be made "in accordance with its own constitutional requirements".

So what does that mean for the UK's decision? Does the UK's constitution allow its Government to trigger Article 50 without further ado? Or must that decision first receive Parliament's blessing?

The claimants in the case of R (Miller) v Secretary of State for Exiting the EU [2017] UKSC5 – Gina Miller (a UK investment manager) and Dier Tozetti Dos Santos (a hairdresser) – sought a resolution to precisely this issue.

The legal challenge: First Instance

The case came first before the UK High Court in a three-day hearing in October 2016.

The Government argued that the decision to withdraw the UK from the EU belongs to the realm of foreign affairs – an area of policy that has traditionally been left to the exercise of the executive's "prerogative powers" (a residue of powers exercisable by the Crown (i.e. the Monarch) acting through the executive branch of Government). Accordingly, it said that it could trigger Article 50 through the use of those powers, without prior approval from Parliament.

Successfully challenging this position, the claimants argued that bypassing Parliament in the way the Government intended runs contrary to the UK's constitutional requirements, since it would frustrate "the rights and duties enacted by Parliament" in the European Communities Act 1972 (the "ECA") (the domestic legislation by which the UK joined the EU in 1973). Moreover, they said, it would be "inconsistent with the object and purpose of that Act, namely to give effect to the rights and duties consequent on membership of the EU."

In handing down its decision, the Court held that the Government "does not have the power under the Crown prerogative to give notice pursuant to Article 50..."

The legal challenge: The Supreme Court

Such was the significance of this decision, the Government was granted leave to appeal directly to the Supreme Court (the highest court in the UK), leapfrogging the Court of Appeal in the process. For the first time in the Supreme Court's history, all 11 of its permanent Justices presided over the appeal hearing from 5 to 8 December 2016.

After considering similar arguments on both sides, the Supreme Court handed down its decision on 24 January 2017, dismissing the Government's appeal by a majority of 8 to 3.

The Supreme Court found that, through the enactment of the ECA, EU law had become a source of UK law which takes precedence over all other domestic sources of UK law. Withdrawing would fundamentally change the UK's constitutional arrangements by removing the source of EU law and the UK's constitution requires that such changes can only take effect through primary legislation.

Likewise, the Supreme Court found that withdrawal would also remove existing domestic rights enjoyed by UK residents. While conduct over foreign affairs may well be reserved to executive Government, its prerogative powers do not extend to matters of domestic law absent prior Parliamentary authority.

Accordingly, the Supreme Court has resolved the UK's recent constitutional controversy: an Act of Parliament is first required to authorise the triggering of Article 50.

What next for Brexit?

As the Supreme Court was at pains to emphasise, their ruling has nothing to do with the "wisdom of the decision" to withdraw from the EU or the terms of that withdrawal – which are political issues for ministers and Parliament to resolve.

Indeed, with the legal position now settled, the matter now shifts back to the political sphere. Draft legislation authorising Teresa May's Government is being debated before both houses of UK Parliament during February 2017 – an initial bill (containing just 137 words) was published on 26 January 2017 with an expedited timetable. The view of most political commentators seems to be that a vote in favour will ultimately carry (albeit, potentially with material amendments as the various political stakeholders press to impose their conditions). Indeed, members of the first house passed a preliminary vote on 1 February 2017. There is also the prospect of a possible further vote on the terms of withdrawal at the end of the negotiations (something promised by Ms May shortly before the recent ruling).

While the overall process still remains very much in its infancy, those wishing to track how the matter develops can find up-to-date information and commentary at the Herbert Smith Freehills Brexit Hub.

For now, for Japanese companies with an interest in the timing of Brexit, the message remains: watch this space.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.