Constitution

UK SUPREME COURT RULED THAT ACT OF PARLIAMENT IS REQUIRED FOR BREXIT

24.01.2017

In a landmark Judgment pronounced by the Supreme Court of United Kingdom, the Highest Court has held that the prerogative could not be invoked by ministers to justify giving notice for Brexit and the ministers require the authority of primary legislation before they can take that course.

In December 2015, the UK Parliament passed the European Union Referendum Act, and the ensuing referendum on 23 June 2016 produced a majority in favour of leaving the European Union. UK government ministers thereafter announced that they would bring UK membership of the European Union to an end.

The said issue of exit of United Kingdom from European Union was raised in proceedings against the Secretary of State for United Kingdom for Exiting the European Union before the Divisional Court of England and Wales. The divisional Court ruled against the Secretary of State vide its judgment dated 03.11.201. The Divisional Court concluded that, because ministers cannot claim prerogative powers to take an action which would result in a change in domestic law, it was not open to ministers to withdraw from the EU Treaties, and therefore to serve Notice, without authorisation in a statute.

The said decision was challenged by way of an Appeal by the Secretary of State before the Supreme Court. The Secretary of State based its case on the existence of the well-established prerogative powers of the Crown to enter into and to withdraw from treaties and it further contended that ministers are entitled to exercise this power in relation to the EU Treaties, and therefore to give Notice without the need for any prior legislation.

The relevant question which concerned the Supreme Court were the steps which were required as a matter of UK domestic law before the process of leaving the European Union can be initiated and the particular issue was that whether a formal notice of withdrawal can lawfully be given by ministers without prior legislation passed in both Houses of Parliament and assented to by the HM the Queen and the ability of ministers to bring about changes in domestic law by exercising their powers at the international level.

However, the Supreme Court by a thumping majority of 8:3, dismissed the Secretary of State’s Appeal against the decision of the English and Welsh Divisional Court and held that in light of the terms and effect of the European Communities Act, 1972 and subject to considering the effect of subsequent legislation and events, the prerogative could not be invoked by ministers to justify giving Notice and the ministers require the authority of primary legislation before they can take that course. The Court further held that the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation, but that in no way means that it is devoid of effect and it means that, unless and until acted on by Parliament, its force is political rather than legal.

Tags : Brexit Enactment Requirement

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