Legal background
- The procedure for withdrawing from the European Union is set out in Article 50 of the Treaty on European Union (‘TEU’). The first step in the procedure is for the Member State that has decided to withdraw to notify the European Council of its intention (Article 50(2)).
- In R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union [2017] UKSC 5 the Supreme Court considered whether it would be inconsistent with the terms of the European Communities Act 1972 for the Prime Minister to give notice to the European Union, under Article 50(2) of the Treaty of the European Union, of the United Kingdom’s intention to withdraw from the EU Treaties, without a prior Act of Parliament. In an 8-3 judgment the Supreme Court concluded that a prior Act of Parliament is required. This Act provides the Prime Minister with the necessary power to give notice of withdrawal under Article 50(2).
- The Supreme Court also considered arguments relating to the devolution acts and whether consent of the devolved administrations is required before notice to withdraw can be served. The unanimous decision of the court was that EU and other foreign affairs matters are reserved to the UK Government and Parliament and that the devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU.
