Parliamentary Legislation Required To Trigger Article 50

Author:Mr Declan Black
Profession:Mason Hayes & Curran

The UK Supreme Court has resoundingly held that the UK Government may not serve the Article 50 notice withdrawing from the European Union without an Act of the UK Parliament giving the necessary parliamentary authorisation.

However, the decisive result (8:3 of the full 11 judge panel) may have limited political fallout in practical terms, given the position taken by Theresa May last week when she confirmed that the UK Parliament will have a vote on the terms of any Brexit deal negotiated. The likely outcome is a short-form Act, although the political theatre will no doubt be interesting.  

However, buried in the detail, there are some interesting points. First, the court proceeded on the assumption that, once served, the Article 50 notice is irrevocable. This point was conceded by the UK Government. The reason for this concession was primarily political, as the legal question of whether or not the notice is revocable is a question of European law which would have to be decided by the Court of Justice for the European Union (CJEU). It would not be politically palatable for this UK Government to be seeking a reference to the CJEU!  ​

Meanwhile, proceedings have been commenced in Ireland to seek a reference to the CJEU on precisely this point.  A finding that the Article 50 notice was revocable by a Member State serving it, would change the negotiating dynamic. The UK could then, theoretically, say if it did not like the exit terms offered that it would revoke the notice and remain a member of the EU after all. Any such volte face would require a profound change in the political climate, but stranger things have happened. It remains to be seen whether, and at what speed, these Irish proceedings will progress.

The other point of Irish interest is the treatment of the various cases commenced in Northern Ireland. The court found that it did not need to express a view on whether the Northern Ireland Act separately required primary legislation to authorise service of the Article 50 notice. This is because of the conclusion it reached on the main question requiring primary legislation by the UK Parliament. 

However, the court unanimously rejected the argument that the terms of the Northern Ireland Act required the consent of the Northern Ireland Assembly to any withdrawal from the EU. This view flowed from the clear terms of the Northern Ireland Act itself, which gives a right to the people of Northern Ireland to decide by poll whether they should...

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