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Supreme Court rules that Parliament must authorise withdrawal of UK from EU

R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5

In previous updates, we reported that the High Court of Northern Ireland had dismissed two judicial review challenges concerning Northern Ireland’s constitutional provisions, while the High Court of England and Wales held that the Secretary of State did not have power under the Royal Prerogative to give notice under Article 50 to withdraw the UK from the EU.

On the 23rd June 2016, a referendum was held in the UK on whether to remain a member of the EU or to leave.  The majority of voters in the UK voted to leave.  However, the majorities in both Scotland and Northern Ireland voted to remain. The applicants in the English case brought a challenge on the grounds that the Executive did not have authority to commence withdrawal from the EU without an Act of Parliament.  The Court agreed and the government appealed to the Supreme Court.  The Supreme Court adjudicated on this primary question and also addressed the constitutional issues concerning the devolved legislatures.

On 24th January, the Supreme Court by a majority of eight to three dismissed the Secretary of State’s appeal.  The majority held that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union.  Lord Neuberger stated that,

‘…unless primary legislation permits it, the Royal Prerogative does not enable ministers to change statute or common law…Further, ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation.’

However, on the devolution issues, the Court unanimously rejected arguments that the Scottish Parliament, Welsh Assembly and Northern Irish Assembly should vote on whether Article 50 could be triggered.  The Northern Ireland Act 1998 did not make provision for this and nor did the devolution arrangements for the other devolved legislatures.  The Sewel Convention likewise did not permit the courts to make a ruling that the devolved governments be consulted.  (The Sewel Convention is a political convention which establishes that Westminster should not normally legislate with regard to devolved matters without the consent of the relevant devolved institution).  The Court held that,

While the UK government and the devolved executives have agreed the mechanisms for implementing the convention…the convention operates as a political restriction on the activity of the UK Parliament…But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary which is to protect the rule of law.’ 

Read the Supreme Court press summary here.

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