The Supreme Court has handed down its highly-anticipated judgment in the Article 50 Brexit case. There were two main questions for the Court to answer: (1) Can the Government trigger Article 50 through Royal Prerogative or must it seek the permission of Parliament; and (2) what is the role of the devolved Parliament and Assemblies?
On the first, the Court has ruled 8 – 3 that a Bill must be passed by both houses for Government to trigger Article 50 and begin the process of leaving the EU, and on the second, it has unanimously ruled that the devolved nations do not have a legal right to be consulted.
This ruling will not come as a surprise to those who have been following the case. The High Court ruled unanimously that Royal Prerogative could not be used to trigger Article 50, setting out their reasons in a strongly worded and well-reasoned judgment. The Government’s subsequent appeal was more carefully argued, however was not substantially different, and few in the Government were expecting the appeal to be upheld. While Theresa May will be disappointed to lose the appeal, she can breathe a sigh of relief that there is no requirement for devolved nations to pass legislative consent motions, for this would have been a problem of her own creation if the Court had ruled the other way and could have significantly impacted on her Brexit timeline.
Requirement for an Act of Parliament
The Government must now put a Bill through Parliament. The majority judgment specifically states that it is the “authority of primary legislation” that is required, and have explicitly noted that a resolution of the House of Commons is not legislation. Beyond this, the judgment states that the “form such legislation should take is entirely a matter for Parliament”.
The Government has said it will introduce a Bill authorising the triggering of Article 50 in a “matter of days”. As a result of the judgment, this can be a very short Bill, and Secretary of State for Exiting the EU David Davis has been quick to state that it will be “the most straightforward Bill possible”. However, after the careless wording of the Referendum Act 2015 that led to this legal challenge in the first place, warnings to the Government to provide a more carefully drafted Bill to avoid further appeals and confusion are not necessarily misplaced.
Whether the Bill will be ‘unamendable’ remains to be seen, but the opposition parties are ready to try. The Labour Party has quickly come out to say that it will seek to amend the Bill to avoid Britain becoming a “tax haven” and to build in the principles of full, tariff-free access to the single market and maintenance of workers’ rights and social and environmental protections. The SNP and Plaid Cymru are also planning their own amendments, while the Liberal Democrats are set to oppose the Bill outright unless it includes a commitment to put the final deal to the electorate in a second referendum. The Bill is also expected to face tough opposition in the Lords, who will want to give it proper scrutiny. However, the Government remains confident that Article 50 will be triggered within the self-imposed deadline of March 2017, now just over five weeks away.
The Supreme Court has unanimously ruled against the devolved legislatures, concluding that although the devolution legislation assumed that the UK would remain a member of the EU, it did not go further and require the UK to remain a member of the EU. Relations with the EU are reserved for the UK Government.
Additionally, the Court found that the Sewel Convention is a political convention, and is therefore not legally enforceable and not a matter for the Courts to adjudicate on. Directly tackling the fact that the Sewel Convention is included in the Scotland Act 2016, the Court found that the UK Parliament was not seeking to convert this into a rule that can be interpreted by the courts. This means that the devolved nations do not have a veto on the triggering of Article 50.
This ruling, along with Lord Keen’s comments in the appeal hearing that the Westminster Parliament is “sovereign and may legislate at any time on any matter”, will provide further ammunition for Nicola Sturgeon and the SNP in pushing for a second independence referendum. Sturgeon has been quick to put out a statement saying that the promises made to Scotland about the Sewel Convention and the importance of embedding it in statute were “not worth the paper they were written on”: a statement that is now very hard to argue with. Coupled with the ‘hard Brexit’ trajectory the UK Government is currently on, the momentum behind a second independence referendum is only set to grow.
Future legal challenges?
This is the end of the road for this legal challenge. However, there are still two Brexit cases to look forward to, both still at the preliminary stages and neither of which is negated by the Supreme Court’s judgment today.
Tax barrister Joly Maugham QC is pursuing a case on the revocability of Article 50 through the Irish High Court. Despite initial speculation that it might, the UK Supreme Court did not feel it needed to refer this case to the European Court of Justice in Luxembourg, as they felt able to “proceed on the basis that [the parties’ assumption that Article 50 is irrevocable] is correct, without expressing any view of our own on either point”. However, dissenting judge Lord Carnwath did note that this assumption is “albeit possibly controversial”. Maugham’s argument that legal certainty over the nature of Article 50 is required from the European Court of Justice therefore still stands.
Adrian Yalland and Peter Wilding’s legal challenge over Article 127 of the European Economic Area (EEA) agreement and membership of the single market also still stands. They are arguing that leaving the EEA is not automatic when the UK leaves the EU and would only happen if Britain formally withdraws by triggering Article 127 of the EEA. While they still have a big hurdle to overcome in convincing the Courts that leaving the EEA is not automatic, they will attempt to use the Supreme Court’s judgment today to argue that if Article 127 does need to be triggered, authorisation must be given through an Act of Parliament for this too.
The courtroom drama may not be over yet.