The Government is appealing the ruling of the Divisional Court that the Secretary of State does not have the power under the prerogative to give notice pursuant to Article 50 of the Treaty on European Union.
The Government’s case is that the Divisional Court was wrong to reach this conclusion. It contends that it does have legal power to give notice pursuant to Article 50, particularly because:
- Under the UK’s constitution, it is for the Government to exercise prerogative powers to conduct the UK’s affairs on the international plane. That is a vital part of the conduct of modern inter-state business and is entirely consistent with the sovereignty of Parliament.
- The European Communities Act 1972 allows into domestic law the EU Treaty obligations which the UK has entered into on the international plane. In short, it is the vehicle by which those obligations are given effect in domestic law. In enacting that vehicle, Parliament was not intending to prevent the government thereafter from exercising its prerogative to make or unmake treaties at the international level. Rights and obligations having effect in domestic law through the 1972 Act could still be created, altered or removed through use of the prerogative.
- In legislation passed after the 1972 Act - including the European Union (Amendment) Act 2008 and the European Union Act 2011 - Parliament specifically restricted the use of the prerogative in relation to the EU Treaties in various respects. But in none of this legislation did Parliament restrict the Government’s prerogative to withdraw from the EU Treaties, either before or after Article 50 came into existence.
- In the European Union Referendum Act 2015, Parliament provided for a referendum on the very question of withdrawal from the EU Treaties on the clear understanding that the Government would implement its outcome by providing notice under Article 50.
- Contrary to the conclusion of the Divisional Court, it is not the case that EU rights and obligations may only be altered or removed with the prior authorisation of an Act of Parliament.
The Government’s full case is set out in its Printed Case.