Government to Shortly Offer Legislation to Keep Timetable for Planned March 2017 Notice

In a judgment dated 24 January 2017, by a majority of 8 to 3,1 the Supreme Court has upheld the High Court’s ruling in November 2016 that an Act of Parliament is required before the UK Government may give notice under Article 50 of the Treaty of the European Union (TEU), thereby beginning the formal process of Britain’s withdrawal from the EU. However, the Court found unanimously that no pre-approval is required from the devolved governments of Scotland, Wales and Northern Ireland. A summary of the judgment is available here.

The Court was required to grapple with the interplay of two constitutional principles. The applicants based their argument in the High Court on the accepted principle that the British executive may not change the law of the land by use of royal prerogative or executive act (as enshrined as early as The Case of Proclamations (1610) 12 Co. Rep. 74). The effect of the European Communities Act 1972 (ECA 1972) was to incorporate European Union treaties and the rights granted therein into domestic law. Therefore, the applicants argued, the Government could not invoke Article 50 TEU – thereby ultimately removing those domestic rights by withdrawal from the treaties – without the approval of Parliament.

For its part, the Government relied on the equally settled constitutional principle that the executive has prerogative power in the field of making and breaking treaties on the international plane. The Government argued that no legislation, not least the ECA 1972 itself, nor the European Union Referendum Act 2015, had done away with the executive’s power unilaterally to withdraw the UK from the EU treaties, as constitutional custom would ordinarily allow.

In the High Court, Lord Chief Justice Lord Thomas, the Master of the Rolls Sir Terence Etherton, and Lord Justice Sales had held that, by its nature, the ECA 1972 is a part of the constitutional framework of the UK, and should be interpreted in that light.2 That being so, at the crux of the High Court’s judgment, it found that:

"Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again".3

Calling the ECA 1972 “unprecedented”4 in constitutional terms, the majority of the Supreme Court, led by its President Lord Neuberger, went further. A previous dictum in Attorney General v De Keyser’s Royal Hotel5 had suggested that prerogative powers should be sustained unless a statute expressly, or by necessary implication, provided for their abrogation. Following such precedent, the High Court had found that the ECA 1972 created such a necessary implication. However, the majority of the Supreme Court held that, in the case of the ECA 1972 and its mechanism for bringing the European Union treaties into domestic legal effect:

"…the Royal prerogative to make and unmake treaties, which operates wholly on the international plane, cannot be exercised in relation to the EU Treaties, at least in the absence of domestic sanction in appropriate statutory form… the proper analysis is that, unless [the ECA 1972] positively created such a power in relation to those Treaties, it does not exist... [I]t is plain that [the ECA 1972] did not create such a power of withdrawal…"6

In so ruling, the majority of the Court also expressly overturned7 the dicta of a judgment of Lloyd LJ in R v Secretary of State for Foreign and Commonwealth Affairs, ex p. Rees-Mogg8. The position appears to be a novel development in British constitutional law that, where treaties have been given direct domestic effect in legislation with enough constitutional significance, the presumption should be that the prerogative has been curtailed unless the statute expresses the contrary. In any case, the majority’s finding means that primary legislation from the Westminster Parliament is required in order to authorize a notification of withdrawal under Article 50 TEU.

The minority, although recognising the ECA 1972 as a statute of constitutional importance for the UK, saw the matter differently. In the leading dissent, Lord Reed stated emphatically:

"The [ECA 1972] imposes no requirement, and manifests no intention, in respect of the UK’s membership of the EU. It does not, therefore, affect the Crown’s exercise of prerogative powers in respect of UK membership."9

The Supreme Court was, however, unanimous on the other issue presented to it. Having considered references and interventions from the devolved governments of Scotland, Wales and Northern Ireland, it held that only the Westminster Parliament was required to give its assent for an Article 50 TEU notification.

This element of the judgment has removed one uncertainty for the process of Brexit. Earlier in January 2017, the arrangements for political power-sharing in the devolved Assembly for Northern Ireland at Stormont collapsed and elections have been called. Elections are unlikely to conclude before March 2017. There was concern that the lack of a constituted Assembly at Stormont would impede the Government’s intended process of Article 50 TEU notification, should the Supreme Court have held that the devolved assemblies would also need to give advanced legislative assent.

As for matters in Westminster, the Scottish National Party has already declared its intention to table several amendments to the now-required authorizing legislation. The Government continues to maintain its intention to make an Article 50 TEU notification to begin the formal Brexit process by the conclusion of March 2017, and it is expected to bring forward a very short bill for debate in Parliament before the end of this week. Prime Minister Theresa May has also indicated her Government will publish a White Paper, which will likely provide details of the Government’s goals for the subsequent negotiations with the EU. The timing of the publication has not been confirmed.