On January 24, the UK Supreme Court issued its judgment in R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union—the appeal of the High Court of Justice’s decision of November 3, 2016—on the proper constitutional process that the UK government must follow in submitting notice to the European Council to start the two-year withdrawal negotiations, pursuant to Article 50 of the Treaty on the Functioning of the European Union.
The Supreme Court has followed the earlier decision of the UK High Court by a majority of 8-3, ruling that the UK government cannot use its prerogative powers (historic powers traditionally used to conduct international affairs including making and unmaking international treaties) to trigger Article 50 without an Act of Parliament. A primary rationale for the decision cited by the majority is that the United Kingdom’s departure from the European Union will have a significant effect on the rights of UK citizens under UK domestic law. Furthermore, the Supreme Court unanimously concluded, though for differing reasons, that the government is not required to consult with the devolved assemblies in Scotland, Wales and Northern Ireland prior to triggering Article 50.
Subsequent to the judgment, on January 26, the government published a short bill, known as the “European Union (Notification of Withdrawal) Bill” (Bill), to be debated and ultimately passed as an Act of Parliament. The Bill simply states that the Prime Minister may notify the European Council of the United Kingdom’s intention to withdraw from the European Union, and that it supersedes any provision made by or under the European Communities Act 1972, which gives domestic effect to the treaties of the European Union.