The UK Supreme Court on 18th November 2016 gave permission to the Lord Advocate of Scotland, on behalf of the Scottish Government , to intervene in the UK Government’s forthcoming appeal against the English High Court’s decision that the UK Government can only trigger Article 50 with the consent of the UK Parliament . The Welsh Government was also given permission to intervene as well.
However the Scottish intervention is potentially significant to the Brexit process given its unique legislative relationship within the UK. According to Scotland’s case it contends that Brexit cannot happen without the UK Government gaining approval of the Scottish Parliament. The Scots are unlikely to give the thumps up to the issue of an Article 50 notice .
This case will be the one of the most important and controversial UK constitutional law case for nearly a century. It will see for the first time in over 600 years the Supreme Court (and its former guise the Appellate Committee of the House of Lords) sit with all eleven Supreme Court judges on a single case . Perhaps this is safety in numbers due to the highly political charged nature of the case.
As readers will probably be aware a notice under Article 50 of the Treaty of the European Union given by the UK Government to the Council of the European Union confirms the UK intention to leave the European Union and triggers the commencement of secession negotiations with the European Union. These negotiations will cover the terms of divorce between the UK and the European trading bloc and the terms of their future trading relationship.
According to the provisions of Article 50 after a period of two years from the date of the giving of the notice the UK will leave the EU subject to a possible extension of this time period with the approval of the 27 remaining EU member States.
The UK Government claimed before the High Court that it could use its prerogative powers to trigger Article 50 without obtaining the consent of the UK Parliament at Westminster. The High Court disagreed and held that the UK Government would have to obtain the consent of Parliament before triggering Article 50. However the Court did not elaborate on whether it requires a simple Parliamentary Bill passed by both Houses of Parliament or whether it would be necessary to submit a detailed Bill dealing with the repeal of the European Communities Act 1972, the statute that implemented EU law into domestic law at the time of the UK’s accession into the European Union. No doubt this will be one of many considerations of the Supreme Court in approaching this case.
Even if the Supreme Court upholds the English High Court’s judgment it is unlikely to alter the UK Government’s determination to take the UK out of the European Union. It will merely delay the process as the majority of Members of UK Parliament back the Brexit referendum vote .
However a different and potentially significant dynamic exists in Scotland. Scotland voted by a large margin to remain within the European Union and Scottish First Minister, Nicola Sturgeon, is anxious that the Scottish Government argues before the Supreme Court that Article 50 cannot be triggered by the UK Government without also obtaining consent of the Scottish Parliament in Edinburgh. It is likely that any vote by the Scottish Parliament would vote down the issue of an Article 50 notice
Scotland argues that due to its unique legislative relationship within the UK which dates back to its Union with England and Wales over 300 years ago it has to be consulted by the UK Government . It will argue that an Article 50 notice cannot be activated without the consent of Parliament as this would breach the provisions of the Claim of Right Act 1689 and Act of Union 1707. These Acts affirmed the sovereignty of Parliament over the Executive, and would also run contrary to the age old constitutional requirement which asserts the UK Parliament must consult its Scottish counterpart in such a process.
Scotland’s case is therefore that before Article 50 is triggered the UK Government has to obtain a the successful passage of a Parliamentary Bill through Westminster as well as the consent of the Scottish Parliament.
The Supreme Court case will be heard from 5 to 8 December 2016 with a result being probably known by mid-January
Many issues hang on this case. In addition to the Scots case, which many think is optimistic, there is likely to be guidance on the form any necessary legislation to trigger an Article 50 notice as well as a possible preliminary reference to the Court of Justice of European Union in Luxembourg on the interpretation of a question of EU law namely the effect of an Article 50 notice and whether it can be subsequently validly withdrawn after issue.
If the latter happens the irony of a Brexiteer UK Government forced to put its case to European judges in Luxemburg will not be lost on many.