The supreme court has delivered its ruling on whether the government must obtain parliament’s authorisation before it can trigger article 50 to leave the EU, one of the most significant constitutional decisions in a generation. Here are the key points:
Can the government trigger article 50 without a parliamentary vote?
The court ruled that the government cannot trigger article 50 without an authorising act of parliament.
Lord Neuberger, the president of the supreme court, said in his summary of the decision, which the 11 judges reached by a majority of eight to three, that the government generally has a prerogative power to change treaties – but not if it will affect people’s rights in domestic law such as those acquired thanks to the 1972 European Communities Act when the UK entered the EU.
“The change in the law required to implement the referendum’s outcome must be made in the only way permitted by the UK constitution, namely by legislation,” the judges said in the key phrase of their ruling.
Therefore, they added, “The supreme court holds that an act of parliament is required to authorise ministers to give notice of the decision of the UK to withdraw from the European Union.”
Must the devolved assemblies be consulted?
Here the judges reached a unanimous decision: UK ministers are not obliged to consult the devolved assemblies.
The judges decided the relevant sections of the Northern Ireland Agreement were “not of assistance in this case”, and the Sewel convention, by which Scotland usually has to give legislative consent to any Westminster legislation affecting devolved matters, “does not give rise to a legally enforceable obligation”.
In their summary, the judges noted that the devolution acts “were passed by parliament on the assumption that the UK would be a member of the EU, but they do not require the UK to remain a member.”
They added that relations with the EU and other foreign affairs matters “are reserved to UK government and parliament, not to the devolved institutions”, and concluded that “the devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU”.
Did the court have anything to say about the kind of bill government must present?
Some experts thought the court might try to specify the type of article 50 bill the government should put before parliament, attach conditions on what needed to be in it, or stipulate that MPs and peers should have further precise roles in supervising Brexit.
On the grounds that a very short, tightly worded bill could be considered more amendment-proof than a long and detailed one, this might have given MPs greater scope to obstruct or amend the bill, it was argued.
But the court took no view on this question, saying the form the legislation should take was “entirely a matter for parliament” and even observing that “a notice under article 50 could no doubt be very short indeed” – although it did say that would “not undermine its momentous significance”.
Nonetheless, although a majority of MPs and peers are expected to respect the result of the referendum and are highly unlikely to vote down any kind of bill, a raft of amendments will certainly be tabled aimed at giving MPs more supervision and grip on the Brexit process as it unfolds.
Is this the end of the government’s legal problems?
As widely anticipated, this decision went against the government. Ministers will, however, be reasonably happy: the supreme court ruled an act of parliament was required to trigger article 50, but it made no statement on what that act should look like, allowing a very brief bill to be put before MPs.
Moreover, by deciding the devolved assemblies need not be consulted, the judges removed a major potential obstacle for the government. Scotland and Northern Ireland both voted against Brexit and could at the very least have delayed the triggering of article 50 beyond Theresa May’s end of March deadline.
But this is not the end of the government’s legal woes. Another case is working its way through the UK courts on whether, under article 127 of the European Economic Area agreement, leaving the EU necessarily means also leaving the single market.
And a case to be heard soon in Dublin over the possible revocability of Brexit in effect asks the the Irish government to refer the whole Brexit question to the European courts of justice.
What were the dissenting judges’ opinions?
According to the court’s summary of its decision, three judges – Lords Reed, Carnwath and Hughes – felt the implementation of EU law in the UK was “inherently conditional on the application of the EU treaties to the UK, and therefore on the UK’s membership of the EU”.
Since the European Communities Act of 1972, which took Britain into the EU, “does not impose any requirement or manifest any intention” as regards the UK’s membership, the three argued, it could not be said to affect the crown’s exercise of its prerogative powers in that respect.
Lord Carnwath also argued that the triggering of article 50 “will not itself change any laws or affect any rights, but is merely the start of an essentially political process of negotiating and decision-making”.
The government will be accountable to parliament for those negotiations throughout, and the whole process cannot be completed without parliament enacting primary legislation in some form, he felt – so parliament, in effect, would be sovereign in any event.
