The UK Supreme Court (the “Court”) in its most important and far reaching judgment to date decided that the UK Government has to seek the approval of the UK Parliament before issuing an Article 50 notice to begin the process of leaving the European Union.
In its eagerly awaited judgment in the Miller case – R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) – the Court ruled on 24th January 2017 in a majority decision (8 vs 3), that an Act of Parliament must be passed in order for the UK to serve an Article 50 notice under the Treaty of the European Union (“the Treaty”) effectively repealing certain EU rights enjoyed by UK citizens under the European Communities Act 1972 (“the 1972 Act”), an Act which implemented the provisions of EU law into domestic law.
The form that legislation needed to take was a matter for Parliament alone. It did not need to be a comprehensive revocation of the 1972 Act and could be short and simple. As simple in fact as the one line bill the Government has already prepared to put before Parliament authorising the service of the Article 50 notice.
The Court also dealt with the contentions of the devolved Administrations in Scotland, Wales and Northern Ireland that they had a right to be consulted and feed into the decision to serve an Article 50 notice. The Court categorically dashed their hopes by finding unanimously that whilst an Act of Parliament would be required for the UK to withdraw from the EU, there was no constitutional requirement to seek the consent of the devolved administrations. They would instead be bound solely by the UK Parliament’s decisions on this issue.
A helpful summary of the judgment can be found here.
The legal issues in this case ultimately arise from certain uncertainties in past UK and EU legislation. Some of these omissions were intentional and politically motivated, leading to the need today to seek judicial clarity. The first is the 1972 Act which did not specify a mechanism for its repeal. UK legislation does not normally specify any particular method of repeal because it is a cornerstone of the UK constitution that Parliament is free to overturn one Act of Parliament with another.
However, the UK Government argued in this case that the rights conferred by the 1972 Act could be repealed by the Government’s prerogative powers alone. The Government submitted that the 1972 Act that brought the UK into the EU did not specifically provide that an Act of Parliament was necessary to overturn the supremacy of EU law granted in that Act. The essence of the Government’s argument was therefore that Section 2 of the 1972 Act gave effect to EU law only so long as the power of withdrawal is not exercised by the UK Government.
The Court disagreed and concluded by a majority that the issue of an Article 50 notice, which begins the withdrawal from the EU, would make fundamental changes to the rights conferred on individuals by the 1972 Act. As such the UK constitution required that such changes needed to be to be made by an Act of Parliament alone.
The second legislative uncertainty related to the wording of Article 50 itself. This required that Article 50 needed to be triggered by any EU Member State “in accordance with its own constitutional requirements”. In addition, Article 50 was vague as to whether once given, a notice could be subsequently revoked and the secession procedure halted. If it was revocable there was an argument that no fundamental rights were being changed and therefore no Parliamentary vote was needed. However all parties before the Court took the position that the giving of Article 50 notice was irrevocable. Therefore this issue was not specifically addressed by the Court.
Nevertheless this particular issue is the subject of separate legal proceedings in the Republic of Ireland which are seeking a reference to the European Court for a determination of that issue. Politically if an Article 50 notice was revocable it could strengthen the UK Government’s hand in future talks with the EU.
The third and last legislative uncertainty relates to the wording of the UK’s 2015 Referendum Act. This Act provided for the referendum on whether the UK should withdraw from the European Union. The Act was unusual in that it did not stipulate whether the result of the referendum would be binding or not. Had it stipulated that a negative result in the referendum was binding and the UK should trigger Article 50 and withdraw from the 1972 Act, the present case would not have come to Court. Why the Government didn’t draft the legislation as comprehensively as it could is likely to have been for political reasons. The previous Conservative administration led by David Cameron was nervous about the unpredictability of the UK electorate when it came to Europe, and with good reason!
Devolved Administrations fail to get their seat at the Brexit table
Opposition to the referendum result has been voiced mainly in Scotland, which overwhelmingly voted to stay in the EU during the referendum. The devolved Administrations had been advocating that the UK Parliament had a duty to consult them pursuant to a convention agreed between the devolved Administrations and the UK Government.
Under the terms of the Sewell Convention, the UK Parliament will not normally exercise its right to legislate with regard to devolved matters without the agreement of the devolved legislatures.
This argument was unanimously rejected by the Supreme Court. The Court ruled that the Sewell Convention was a matter of politics alone, not law, and it had no binding effect on the power of the UK Parliament. They went further to stipulate that relations with the EU and other foreign affairs matters are reserved to the UK Government and Parliament, not to the devolved institutions. Therefore in summary, devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU. This clarification will have the effect of excluding the devolved Administrations from any formal part in the Brexit process.
Whilst no doubt the UK Government will make overtures towards them in the coming years, the UK Parliament (not just the current Government) has in reality won an emphatic victory for itself and its own powers which will echo down the years.
What happens next?
The Government is likely to introduce a very short Bill before Parliament in the coming days, seeking Parliamentary approval to trigger the Article 50 process.
The Scottish National Party and Labour parties have already announced that they will attempt to amend the Government’s Article 50 Bill seeking reassurances on the terms of the UK negotiating position, particularly about withdrawal from the EU single market. There is likely to be a fierce battle to get many of these amendments accepted due to Parliamentary Rules of Procedure which place severe limitations on the nature of amendments of a short bill such as this.
So at least for now the Brexit battle moves from the Courts to the political stage. The Government is confident on meeting its target of triggering Article 50 by the end of March. But as the history of this highly contentious matter shows, there are likely to be many more upsets in store before Theresa May, the UK Prime Minister, can finally sign off on that Article 50 letter to Donald Tusk, the President of the European Council, sounding the starting gun on the UK’s Brexit negotiations.