Article 50 of the Treaty on the European Union provides, in summary terms, that, if a member state decides to withdraw from the European Union (“the EU”) ‘in accordance with its own constitutional requirements’, it should serve a notice of that intention (“a Notice”), and that the treaties which govern the EU (“the EU Treaties”) “shall cease to apply” to that member state within two years thereafter. Following the June 2016 referendum, the Government proposes to use its prerogative powers to withdraw from the EU by serving a Notice withdrawing the UK from the EU Treaties.
The principal issue in these appeals is whether such a Notice can, under the UK’s constitutional arrangements, lawfully be given by Government ministers without prior authorisation by an Act of Parliament and whether the terms on which powers have been statutorily devolved require consultation with or the agreement of the devolved legislatures before Notice is served, or otherwise operate to restrict the Government’s power to do so (‘the devolution issues’).
The Supreme Court by a majority of 8 to 3 dismisses the Secretary of State’s appeal. In a joint judgment of the majority, the Supreme Court holds 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.
On the devolution issues, the court unanimously concludes that it is not necessary for the court to decide if the Northern Ireland Act 1998 imposes a discrete requirement for such legislation, and that the Sewel Convention, which says that the UK Parliament will not normally exercise its right to legislate with regard to devolved matters without the agreement of the devolved legislature, does not give rise to a legally enforceable obligation.
This article appears in the JHA January 2017 Tax Newsletter, which also features:
