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24 January 2017

In the most significant judgment concerning the UK’s constitution in generations, the Supreme Court (a majority of 8 to 3) has rejected the UK Government’s case that ministers could start the process of withdrawal from the European Union without the authority of Parliament. The Court has held that such a step (the giving of notice under Article 50(2) of the Lisbon Treaty) can only lawfully be carried out with the sanction of primary legislation, enacted by the Queen in Parliament, although the consent of the devolved assemblies of Northern Ireland, Scotland and Wales would not be needed.  The UK Parliament is sovereign on the matter.  This was the Government’s appeal against the decision of the High Court last year.At the legal heart of the case has been the question of whether ministers have the ability to bring about changes in domestic law by exercising their powers at an international level. Central to this has been the meaning and effect of the European Communities Act 1972, which made EU law directly applicable in the UK.In his lead judgment, the President of the Court, Lord Neuberger, has outlined the legal character of the constitutional settlement in the UK, rehearsing the fact that the UK does not have a single coherent code of fundamental law which prevails over all other sources of law. Instead, UK constitutional law has developed over time ‘in a pragmatic and principled way, through statutes, events, conventions, academic writings and judicial decisions’. Today, the legislative power of the Crown is exercisable only through Parliament, the Crown’s administrative powers being exercised by the executive – by ministers, who themselves are answerable to the UK Parliament. In a telling observation, Lord Neuberger described ministers as constitutionally junior partners to Parliament, the constitutionally senior partner.Against that backdrop, the Judge emphasised that ministers can only exercise their administrative powers in a way that is compatible with legislation and the common law (judge made law).Whilst the Supreme Court recognised that the prerogative power of the Crown to make or unmake treaties can be exercised by ministers without the authority of legislation, it restated the established principles that this operates only on the international plane and only where it is consistent with the rule that ministers cannot, on their own, alter domestic law. This ‘dualist theory’ of international and domestic spheres of authority was, the Court explained, a necessary corollary of Parliamentary sovereignty and a system that exists to protect Parliament, not ministers.The majority judgment has described the 1972 Act as unprecedented in its effect, given that it made EU law not only a directly applicable source of UK law, but one having precedence over all domestic sources of UK law and whilst there is no argument about whether it is capable of being repealed – the state of affairs only lasts for so long as Parliament wishes it –the Act has a constitutional character. On passing into law, it became part of the UK’s constitutional arrangements, involving as it did a transfer away of law-making powers - an assignment of legislative competencies, as the Court has put it.The Court has held that in passing the 1972 Act, Parliament gave effect to EU Law in a way that was inconsistent with the future exercise by ministers of any prerogative power to withdraw from EU treaties and that no Act of Parliament since 1972 has changed that state of affairs. Put shortly, Parliament has at no point contemplated or intended ministers would cause the UK to withdraw from the EU treaties without Parliamentary approval.The Court was reinforced in its views on the effect of the 1972 Act by the conclusion that domestic rights acquired through EU law would inevitably be changed by the act of giving notice under Article 50 and there was nothing in the legislation that envisaged ministers having the competency to produce such an effect on their own. Such a power could not be derived impliedly from the legislation. An express power would be needed and there is none.Looking forward, Lord Neuberger has highlighted that a withdrawal from the EU will mean that EU law will cease to be a source of domestic law, even if the Government’s planned ‘Great Repeal Bill’ provides that some legal rules derived from EU law should continue to apply. In that event, decisions of the Court of Justice of the European Union (CJEU) will (depending on the terms of the Bill) be of no more than persuasive authority. It follows that rules derived from EU law and transposed into UK law by domestic legislation will no longer be paramount and may be altered in ways inconsistent with EU law.Whilst mindful not to trespass into the political arena, the Court could not avoid examining the legal context of the June referendum. On that it has concluded that the referendum was never intended by Parliament to have legal effect. In contrast to other recent referenda (eg Scottish independence), the legislation by which the EU referendum was held made no provision for any consequences, one way or the other.  It follows that no legal effect flowed from it. Likewise, the resolution of the House of Commons in December (2016) calling on ministers to give notice under Article 50 by 31 March 2017 was not relevant to the Court’s thinking, as it was a political act and not legislation.Whilst one would never presume to put words in the mouths of the highest Judges in the land, it is hard to avoid the temptation to add: “So, over to you Mr Secretary of State…Majority:Lord Neuberger - PresidentLady Hale – Deputy PresidentLord ManceLord KerrLord ClarkeLord WilsonLord SumptionLord HodgeDissenting:Lord ReedLord CarnwathLord HughesThe full judgment can be found here.For further information, contact Dominic Hopkins, Head of Disputes and Litigation    

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