Brexit – Article 50 Notice Requires An Act Of Parliament

Author:Arthur Cox
Profession:Arthur Cox

On 24 January 2017, the Supreme Court of England and Wales, by a majority of 8 to 3, upheld the High Court's November 2016 decision that an Act of Parliament is needed before the UK Government can serve notice (under Article 50 of the Treaty on European Union) on the European Council of the UK's intention to leave the EU.

The Supreme Court's judgment is here and its summary of that judgment is here.

The Supreme Court also confirmed that consent is not required from the Northern Ireland Assembly, the Scottish Parliament or the Welsh Assembly before the Article 50 notice can be served.

The European Union (Notification of Withdrawal) Bill 2017 was then published on 26 January 2017. As signalled by David Davis, Secretary of State for Exiting the EU, the draft is straightforward and simply authorises Theresa May to serve the Article 50 notice. MPs are scheduled to begin debating the Article 50 Bill on 31 January 2017.


In deciding that the UK Government could not use its prerogative powers to serve the Article 50 notice, and that legislation is needed to allow the UK Government to do so, the Supreme Court held that:

the terms of the European Communities Act 1972 are inconsistent with the UK Government withdrawing from the EU treaties without an Act of Parliament; Brexit will fundamentally change the UK's constitutional arrangements by removing EU law as a source of law. That change will be a direct consequence of the Article 50 notice being served and is so fundamental in nature that it can only be effected by an Act of Parliament; and as Brexit will remove certain existing domestic rights of UK residents, the UK Government cannot progress Brexit without an Act of Parliament. UK GOVERNMENT RESPONSE TO THE JUDGMENT

David Davis, Secretary of State for Exiting the EU, gave a statement to the House of Commons a short time after the judgment was delivered in which he indicated that the UK Government's timetable for serving the Article 50 notice before the end of March 2017 remains the same.

The UK Parliament is not expected to vote against the Article 50 Bill, in particular in light of the resolution passed by the House of Commons in December 2016 acknowledging that the result of the Brexit referendum should be respected and calling on the UK Government to serve the Article 50 notice by 31 March 2017. However, it is possible that some MPs could seek amendments relating to the UK Government's negotiating...

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