The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Why Brexit requires an act of Parliament

January 24 2017 24 January 2017


The U.K. Supreme Court has ruled, by a majority of 8 to 3, that an act of Parliament is needed before the government can trigger article 50 of the Treaty of Lisbon, notifying its intent to pull out of the European Union, a process that must be completed within two years.

The president of the Supreme Court, Lord Neuberger of Abbotsbury, read a summary of the ruling:

Section 2 of the 1972 [European Communities] Act provides that, whenever EU institutions make new laws, those new laws become part of UK law. The 1972 act therefore makes EU law an independent source of UK law, until parliament decides otherwise.

“Therefore, when the UK withdraws from the EU treaties, a source of UK law will be cut off. Further, certain rights enjoyed by UK citizens will be changed. Therefore, the government cannot trigger article 50 without parliament authorising that course.

The court recognized the "great political significance" of last year's Brexit referendum, and was careful to draw the distinction with the legal significance of the vote, which under the UK's constitution, must be backed up by legislation to be given effect.

The Supreme Court was unanimous, however, that devolved parliaments and assemblies in Scotland, Wales and Norther Irelanvd, don't have to be consulted on triggering article 50.

Interestingly the Supreme Court also included a clear statement in its judgment that it is not ruling on the irrevocability of the process:

In these proceedings, it is common ground that notice under article 50(2) (which we shall call “Notice”) cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn. Especially as it is the Secretary of State’s case that, even if this common ground is mistaken, it would make no difference to the outcome of these proceedings, we are content to proceed on the basis that that is correct, without expressing any view of our own on either point. It follows from this that once the United Kingdom gives Notice, it will inevitably cease at a later date to be a member of the European Union and a party to the EU Treaties.

Bagehot explains the constitutional crisis ahead:

What the ruling will do is make Britain’s constitutional tensions creak and groan like never before. The very fact that it was necessary spoke to the ambiguities created by the absence of a written constitution. The prospect of even a minority of Lords voting against the result of the referendum will highlight the arbitrary character of the unelected upper house. Whether MPs vote as their constituents did (some Labour MPs with seats that strongly voted Leave have already indicated they will vote against the bill) will probe the limits of representative principles. The debates may force MPs to stipulate what sort of final Brexit deal they would (and would not) vote for at the end of the Article 50 process, when the outcome of Mrs May’s efforts in Brussels will go before both houses.

Update: Curtis Bradley and Laurence Helfer wonder whether the UK ruling is relevant to the authority of U.S. President Donald Trump, should he decide to withdraw from his country’s treaties unilaterally, given the substantial differences in constitutional law:

That said, there is a difficult question in the United States about how the President’s unilateral authority to withdraw from treaties (assuming the President has this authority) operates with respect to treaties that have been implemented by statute.  As in the UK, the executive branch in the United States has no authority to make or unmake statutes.  In theory, therefore, legislation that implements a treaty could continue in effect even after a president withdrew the United States from the treaty.  Whether it would do so would presumably turn on whether Congress intended the statute’s continuing operation to be conditioned on the United States remaining a party to the treaty.  But this is a somewhat different issue from whether an implementing statute should be construed as disallowing executive branch withdrawal from the treaty—the issue addressed by the UK Supreme Court.

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