An Act of Parliament is required to authorise Government Ministers to give ‘Notice’ of United Kingdom’s decision to withdraw from European Union

Supreme Court of United Kingdom: In a landmark decision with regards to the June 2016 referendum which marked the “BREXIT”, the 11- Judge Bench of the Court with a ratio of 8:3 held that, in conformation of Article 50 of the Treaty on the European Union, an Act of Parliament is required to authorise ministers to give ‘Notice’ of the decision of the United Kingdom to withdraw from the European Union.

The issue in the present case was that whether the Notice as stated in Article 50 of the Treaty on the European Union can be lawfully given by the government ministers, without an Act of Parliament. Article 50 clearly states that if a member state decides to withdraw from the European Union ‘in accordance with its own constitutional requirements’, it should serve a Notice of that intention and that the treaties which govern the EU “shall cease to apply” to that member state within two years thereafter. It was contended that, “the Government cannot serve a Notice unless first authorised to do so by an Act of Parliament. Resolution of this dispute depends on the proper interpretation of the European Communities Act 1972 (‘the ECA’), which gave domestic effect to the UK’s obligations under the then existing EU Treaties”.

While deciding the case, the Court made it clear that, it is not conducting a scrutiny over the validity of the decision of the United Kingdom to withdraw from the EU. President, Lord Neuberger, heading the majority decision, stated that “Section 2 of the ECA authorises a dynamic process by which EU law becomes a source of UK law and takes precedence over all domestic sources of UK law, including statutes”. Observing upon the major political and legal significance of the 2016 Refrendum, the majority stated that, “The change in the law required to implement the referendum’s outcome must be made in the only way permitted by the UK constitution, namely, by an Act of Parliament”. The dissenting Judges however observed that, “The ECA does not impose any requirement or manifest any 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.” [R v. Secretary of State, [2017] 2 WLR 583: [2017] UKSC 5, decided on 24.01.2017]

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