Brexit and the Article 50 Dispute

In 2015, the UK Parliament passed the European Union Referendum Act. A referendum ensued on 23rd June 2016 that produced a majority in favour of leaving the European Union. The House of Commons called on the Government to invoke Article 50 of Treaty of Lisbon by 31st March 2017. This Article provides for a member state to decide to withdraw from the European Union. Gina Miller and Deir dos Santos filed a proceeding for judicial review on whether a formal notice of withdrawal can lawfully be given by ministers without prior legislation passed in both Houses of Parliament and assented to by HM The Queen. The Divisional Court ruled against the Secretary of State on 3rd November 2016. The decision is now in the Supreme Court pursuant to an appeal by the Secretary of State.

The issue in this case, as provided in paragraph 4 of the appeal, regards the steps required as a matter of the UK domestic law before initiating the process of leaving the EU. It concerns the extent of the ministers’ power to give effect to changes in domestic law, which in this case is the European Communities Act 1972, through the exercise of their prerogative powers at the international level. Also, on one hand, the issue concerns the relationship between the government and the Parliament and on the other, the devolved legislatures and administrations of Scotland, Wales and Northern Ireland.

The main issue in this appeal regards the extent of power of the ministers as mentioned above. Paragraph 5 provides that this issue arises from two features of the constitutional arrangements of the country. Firstly, ministers possess a free power to enter into and also to terminate treaties without recourse to the Parliament. The Secretary of State for Exiting the European Union claims that this power also includes the right to withdraw from the EU treaties that govern UK membership of the EU. Secondly, the ministers cannot exercise power that would change the domestic law, except by a statute, which is an Act enacted by the Parliament. This prevents ministers from withdrawing from the EU Treaties, until the act is effectively authorised by a statute. The Supreme Court has to deal with the specific issue, stated under paragraph 2, of whether a formal notice of withdrawal can lawfully be given by the ministers without prior legislation passed in both Houses of Parliament and assented to by HM The Queen.

The Supreme Court held that the Government cannot use its prerogative power to initiate Article 50 provisions. Their decision is based on the following principles:

i. Firstly, the majority decision relied on relationship between EU and UK law. Paragraph 60 provides that EU law is a source of UK law, and it takes precedence over all domestic sources of the UK law, including the statutes. Paragraph 65 further states that even if the European Communities Act 1972 gives effect to the EU law, it cannot be the originating source of that law. Thus, as long as the 1972 Act exists, it gives EU the effect to be the independent and overriding source of UK domestic law.

ii. Secondly, the majority decision emphasised on the operation of the European Communities Act 1972. Paragraph 66 cites the European Union Act 2011, s 18 that provides for primacy of EU law over domestic legislation and that the EU law cannot be displaced by a mere enactment of inconsistent legislation. This is also reflected in the 1972 Act, s 2(4). Paragraph 67 provides that as long as the 1972 Act continues to apply, question about EU primacy is a matter of the Parliament. Paragraph 78 provides the majority decision. Given that when the United Kingdom withdraws from the EU Treaties, EU law cannot be a part of UK domestic law. In such situation, ministers cannot cause the withdrawal without prior Parliamentary approval. Majority decision in paragraph 78 sets out the difference between a change in domestic law caused by variations in EU law content due to a new EU law, and a change in domestic law caused by UK withdrawal from the EU. In the former type of change, the new EU law is brought into domestic law through the 1972 Act, s2. In the latter type of change, a constitutional body takes a unilateral action effecting a fundamental change in the constitutional arrangements of the country.

iii. Thirdly, the majority decision is based on the constitutional implications of withdrawal from the EU, provided under paragraph 81. Such withdrawal would constitute a significant constitutional change as it had occurred when the 1972 Act incorporated EU law. If the ministerial decision or ministerial action alone would bring change to the UK constitutional arrangements, it would create far-reaching change to the arrangements, which would be inconsistent with the long-standing and fundamental principle.

One of the main issues that arises from this case is regarding the extent of prerogative power and the constraint upon this power either through the judiciary and more important a treaty-based arrangement. This is majorly focused by the majority decision and their reasoning relies on content of EU law and the manner domestic law incorporated and accommodated it. Following similar situation, in case the UK is a party to an international treaty, if such treaty becomes a source of law such as the EU law, would the same principle in the majority decision apply? In case the treaty does not constitute a source of law, can prerogative power be exercised without the involvement of the Parliament? Paragraph 183 provides for Parliamentary sovereignty as fundamental principle that could give direct effect to international law within the framework established by Parliament. This principle governs the first issue where a treaty originates a domestic law. Concerning the second issue of free exercise of prerogative power, it is relevant to refer to paragraph 240 that provides for the courts to not overlook ministerial accountability to the Parliament. To conclude, it is important to recognise the balance between the respective roles of Parliament, Government and the Judiciary.