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UK – Government cannot withdraw from EU Treaties without authorisation by a prior act of Parliament – Effects on the ratification of the UPC Agreement?

25 Jan 2017

UK Supreme Court, Miller & Anor, R v Secretary of State for Exiting the European Union, [2017] UKSC 5, 24 January 2017

In its judgment, the Supreme Court dismissed the Government’s appeal against the decision of the High Court (Administrative Court) and held, by a majority of 8 to 3, that an Act of Parliament is required to authorise ministers to give notice under Article 50 EU Treaty of the decision of the UK to withdraw from the European Union. The Court emphasises that UK domestic law will change as a result of the UK ceasing to be party to the EU Treaties and the rights enjoyed by UK residents granted through EU law will be affected. Withdrawal from the EU made a fundamental change to the UK’s constitutional arrangements by cutting off the source of EU law. Also, the fact that withdrawal from the EU would remove some existing domestic rights of UK residents made it impermissible for the Government to withdraw from the EU Treaties without prior Parliamentary authority.

It remains to be seen whether, and if yes to which extent, the decision delays the notification to the European Council of the UK’s intention to withdraw from the EU. The Government is said to have already started the preparation of a bill and sources expect a majority for it in the Parliament. Nevertheless, the procedures may require their time.

In respect of the creation of the Unified Patent Court (UPC), the Government also needs a statutory instrument for the Protocol on Immunities for this Court. Although official sources have announced green light for the ratification of the UPC Agreement, recent statements appear to be contradictory. In her 12 points speech, the Prime Minister has unambiguously repeated her statement that the Government will bring an end to the jurisdiction of the CJEU in Britain because the UK will not have truly left the EU if it is not in control of its own laws. The new IP minister has stated that questions on participation of non-EU-members will form part of the bigger discussion around the Brexit negotiations. Without these questions being solved, it is difficult to imagine on which legal basis the UK can ratify the UPC Agreement. Thus, it appears that even if the Government wishes to ratify the UPC Agreement, there are not yet clear ideas when and under which conditions this may happen.

Read the full decision here.

Read the press summary here.