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Jan Advocate 2017

12 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal … 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2 … 3. Emphasis added. Thus, Article 50 triggers an exit from the EU, and failing an agreement reached between the EU and the UK, that exit occurs two years after the notification is given. Quite simply, the court was asked to determine the constitutional requirements that must be met in the UK to trigger Article 50. Front and centre, for the court, was the concept of the sovereignty of the UK Parliament. It stated: It is common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme (we will use the familiar shorthand and refer simply to Parliament). Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen. The European Communities Act 1972, which confers precedence on EU law, is the sole example of this.3 The European Economic Community (“EEC”) was created by the Treaty of Rome in 1957. The treaty had been freely negotiated between certain sovereign states of Europe. The UK was not a signatory to the Treaty of Rome; however, it applied to join the EEC in 1963 and 1967 only to be vetoed by French President, Charles de Gaulle, who thought Britain was “incompatible with Europe”. After Charles de Gaulle relinquished his presidency in 1969, Britain yet again sought to join the EEC. Third time lucky, or “troisième chance” as they say. In January 1972 then prime minister Sir Edward Heath, leader of the Conservative Party, signed the Treaty of Accession. This was a matter of international law, namely an agreement between nations. In order to implement the international legal commitments the UK had committed to, the UK Parliament enacted domestic legislation, the European Communities Act 1972 (“ECA 1972”),4 which gave effect to binding obligations and rights arising under the treaties of the EEC. Put another way, the ECA 1972 ratified treaty obligations negotiated between the sovereign governments of the UK and other European nations.5 Upon the formation of the EU in 1993,


Jan Advocate 2017
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