Study On The Question Of The Constitutionality Of The "Brexit"

Whether or not to withdraw from the EU had always been a political issue with major controversy in the UK.In order to win the election,Cameron promised to hold a"Brexit" referendum in the 2015 campaign speech and promoted the "Brexit"referendum after he became the prime minister.On 23 June 2016 the UK held a referendum on "Brexit" and the final result of the referendum was that 51.9%of the voters supported to leave the EU.In October 2016,the British government promised to implement the referendum result and would send a notice of withdraw to the EU on 29 March 2017.Due to dissatisfaction with the government’s plan to send a "Brexit" notice to the EU,some British citizens took the Secretary of State for Exiting the EU to the High Court of Justice Queen’s Bench Division Divisional Court.After the court made the judgment,the Secretary of State for Exiting the European Union appealed to the British Supreme Court.On 24 January 2017,the Supreme Court of the UK made a final judgment on R(on the application of Miller and another)(Respondents)v Secretary of State for Exiting the European Union(Appellant).In 1972,the British Parliament enacted the European Community Act of 1972 before ratifying the Treaty of Accession of the European Communities(hereinafter the EC).Through this Act,EU law can directly produce domestic law effect in the UK and its effectiveness takes precedence over domestic law.Because of EU law’s direct effectiveness and priority effectiveness in the UK,the UK’s economic,diplomatic,legal and other fields have been greatly affected by EU law.When the UK withdraws from the EU,the EU law will no longer apply to the UK,so "Brexit" will have a major impact on these fields and the impact will be no less significant than the significant impact of joining the EC.When the British joined the EC,the British Parliament enacted a constitutional law-the European Community Act of 1972 which legally recognized the influence of EU law on the British constitution and changed the constitutional arrangement ofthe UK.The Brexit will also have a significant impact on the previously constitutional arrangement,so the Supreme Court of the UK judged that according to the constitutional principle of the supremacy of the parliament,British government need the authorization of legislation before send a "Brexit" notice.This dissertation will be divided into four chapters to study the constitutionality of the "Brexit".The first chapter introduces the social and political background of "Brexit",including the impact of the 1972 European Community Act on the British constitution and the reasons and process of the "Brexit".The 1972 European Community Act was enacted by the UK in order to fulfil the obligations of a member state of the EC before joining the EC.The Act establishes the direct and priority effects of the EU law.Its enactment and implementation have produced a maj or impact of the British constitution,including the impact of the civil rights,parliamentary sovereignty,judicial system and national sovereignty.The "Brexit" is also determined by the specific social and political background at that time,so the reasons of the "Brexit" are introduced,followed by a brief introduction of the process of "Brexit".The second chapter introduces the statutory basis for the "Brexit".It will affect the constitutionality of the "Brexit" whether there a legal basis or not,so this chapter introduces the statutory basis of the "Brexit".This chapter will analyse the legal basis of the "Brexit" from two aspects:one is the basis of international law and the other is the basis of domestic law.This chapter will analyse the legal texts of Article 50 of the European Union Treaty after amended by the Lisbon Treaty which is signed in 2007,the European Community Act 1972 and the European Referendum Act 2015.The third chapter analyses the judgment of R(on the application of Miller and another)(Respondents)v Secretary of State for Exiting the European Union(Appellant).The Supreme Court of the UK judged that the British government cannot issue a"Brexit" notice without the authorization of legislation,because the "Brexit" notice will inevitably lead that EU law no longer apply to the UK and impact the domestic law and rights of the UK,Therefore,the government’s notification of "Brexit" requires legal authorization,and the government had not obtained legislative authorization from the parliament,so the government cannot issue a "Brexit" notice.The first section of this chapter will summarize the case briefly.The case focuses on three controversial questions and the next three sections will respond to the three questions separately on the basis of analysis.The first controversial question is whether the government has the privilege of issuing a "Brexit" notice,and the second controversial question is whether the European Community Act 1972 provides a legal authorization for the government to issue a "Brexit" notice.The last controversial question is whether the "Brexit"referendum can provide a legal basis for issuing a "Brexit" notice.The fourth chapter is an analysis of the constitutional significance of Miller and others v Secretary of State for Exiting the European Union.The constitutional significance of the case mainly includes two aspects:one is that the case clarifies the connotation and extension of the British constitution,introduces what the British constitution is and how the British constitution is applied;the other is that the case covers the main process of "Brexit",involving the introduction of the relationship between the UK and the EU,providing a reference for sovereign states and international organizations in terms of how to formulate their respective legal systems to construct the relationship between them.