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Brexit Briefing: UK Supreme Court rules against Government

The Supreme Court has confirmed that the Government needs to pass an Act of Parliament before triggering Article 50. We summarise what this means for the Brexit process.

What did the Supreme Court decide?

By a majority of eight to three, the Supreme Court confirmed that the Divisional Court was correct in stating that an Act of Parliament was required to deliver an Article 50 notice. It also confirmed that a statute was required, rather than a mere resolution of the House of Commons.

This is because commencing the process of leaving the EU will result in fundamental changes to the UK’s constitutional arrangements, changes to UK domestic law and the rights of UK citizens.  As a result, the Government cannot simply use the royal prerogative powers it uses to enter into and leave treaties to take such a step.

See our previous post on the Divisional Court’s decision here.

What about Scotland, Wales and Northern Ireland?

As well as considering the Government’s appeal of the Miller judgment, the Supreme Court also dealt with referrals from two Northern Irish cases on the ability to activate Article 50 without the consent of the people of Northern Ireland or the Northern Irish assembly.   The Supreme Court unanimously concluded that the Northern Ireland Act 1998 does not impose any additional requirements.

The Supreme Court also concluded that the “Sewel Convention”, the political understanding as to how Westminster and the devolved administrations interact in overlapping matters, did not create legal obligations that could be enforced through the courts and therefore did not affect the judgment.

Accordingly, whilst the majority of those who voted in Scotland and Northern Ireland (but not Wales) supported remaining in the EU, the devolved institutions have no veto in the process. Such a decision might have been more limiting for the Government than the requirement for an Act of Parliament.

However, the Scottish National Party has renewed its threat that a “hard Brexit” will result in another Scottish independence referendum.

What happens now?

Despite bringing the appeal, it is reported that the Government expected to lose and has drafted a very short draft bill giving it the authority to pass Article 50 (Bill).  The majority judgment commented on this possibility:

“…it is right to add that the fact that Parliament may decide to content itself with a very brief statute is nothing to the point. There is no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity.

Update: The Government has now published a very short draft European Union (Notification of Withdrawal) Bill“.

Will an Article 50 Bill pass?

The Government has a slim majority in the House of Commons and can be expected to whip its MPs to support the Bill’s passage, whether they previously supported remaining in the EU or not.

The Leader of the Opposition, Jeremy Corbyn, has insisted that Labour will support triggering Article 50 because of the referendum result and will “ask” its MPs to support it.  However he has said that Labour will seek to add amendments to restrict the Government’s negotiating position, “to prevent the Conservatives using Brexit to turn Britain into a bargain basement tax haven off the coast of Europe.”

There will be some opposition to the Bill, notably from the Scottish National Party and the Liberal Democrats. However any defeat would require a major rebellion of Conservative and Labour MPs.

Assuming the House of Commons votes in favour of the Bill, the House of Lords will also have to vote.  There has already been speculation regarding the likelihood of the Lords voting against Article 50, which is possible due to independent-minded Opposition peers and concerns about the Prime Minister’s plans for a “hard Brexit”.

The unelected Lords do not, by convention, ultimately vote against election manifesto commitments by a governing party.  However, the last Conservative manifesto preceded the Brexit referendum.  Whilst that manifesto included the pledge to hold the referendum, it also referred to safeguarding “British interests in the single market“, which arguably clashes with Mrs May’s confirmation that Britain will leave the single market.

Some press reports suggest that the result would be a constitutional crisis, with the Government using threats to the powers and composition of the Lords to ensure the passage of the Bill.

Will it affect the process of Brexit?

The Prime Minister has outlined a timeline for Brexit based on sending an Article 50 notice before the end of March 2017.  The Government believes that this is still achievable, despite the need for an Act of Parliament. A delay to the process is possible, but Brexit remains likely to proceed in any event.

The Government’s recently-stated negotiating aims for Brexit include leaving the single market and a mutually beneficial free trade deal, in the belief that a punitive deal would be “an act of calamitous self-harm for the countries of Europe”.  Many sectors, including manufacturing and financial services, will nervously wait to see what can actually be achieved when formal negotiations start.

The full Supreme Court judgment can be read here and a press summary is available here.  Read all our recent articles on Brexit here.

Disclaimer: This article is produced for and on behalf of White & Black Limited, which is a limited liability company registered in England and Wales with registered number 06436665. It is authorised and regulated by the Solicitors Regulation Authority. The contents of this article should be viewed as opinion and general guidance, and should not be treated as legal advice.

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