06 February 2017
Article by Dr Alys Thomas National Assembly for Wales Research Service
Since the Supreme Court Ruling developments around Brexit have been rapid.
The UK Government argued that it could invoke Article 50 of the TEU without Parliament passing legislation. It said that the prerogative powers of the Crown to enter into and to withdraw from treaties meant Ministers were entitled to exercise this power in relation to the EU Treaties, and therefore to give Notice of the UK’s intention to leave without the need for any prior legislation.
The claimants, however, argued that withdrawal from the EU Treaties would change domestic law. Owing to the rule that prerogative powers cannot be used to change UK domestic law, they said this meant that the UK Government could not serve a Notice unless first authorised to do so by an Act of Parliament.
The Supreme Court dismissed the Secretary of State’s appeal by a majority of 8 to 3. The Supreme Court considered that the terms of the European Communities Act 1972, which gave effect to the UK’s membership of the EU, were inconsistent with the exercise by UK Ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament.
The UK Government reacted by publishing the European Union (Notification of Withdrawal) Bill 2016-17. The Bill has just two clauses which state:
1 Power to notify withdrawal from the EU
(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.
(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.
2 Short title
This Act may be cited as the European Union (Notification of Withdrawal) Act 2017.
The Bill received its Second Reading on 31 January and 1 February. 498 MPs voted in favour and 114 voted against. It goes to a Committee of the Whole House for three days starting on 6 February. It is due to have its Third Reading and Report Stage on the 8 February. It will then go the House of Lords.
Amendments have been tabled to the Bill. A number of these add new clauses which establish powers through which the UK Parliament can scrutinise the UK Government throughout the negotiations. Other amendments seek to place the role of the Joint Ministerial Committee on a statutory footing during negotiations to leave the EU and/or to require the Prime Minister to secure the agreement of the First Ministers of Wales, Scotland and Northern Ireland before agreeing the terms of withdrawal. A group of amendments would also require Ministers to seek the approval of Parliament of the terms of any proposed withdrawal agreement with the EU.
The clauses that aim to formalise the role of the Joint Ministerial Committee are linked to the Supreme Court Article 50 ruling, which held that the convention according to which the UK Parliament will not legislate in matters that are devolved (known as the “Sewel Convention”) is not a matter for the courts. The Court stated:
In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.
The day after the Second Reading of the Bill the UK Government published a White Paper: The United Kingdom’s exit from and new partnership with the European Union. With regard to devolution, it stated:
The devolved administrations will continue to be engaged through the Joint Ministerial Committee (JMC), chaired in plenary by the Prime Minister and attended by the First Ministers of Scotland and Wales and the First and deputy First Ministers of Northern Ireland, and the JMC sub-committee on EU Negotiations (JMC(EN)), chaired by the Secretary of State for Exiting the European Union, with members from each of the UK devolved administrations.