Posted on Nov 03, 2016
“Today’s judgment by the Divisional Court that Parliamentary approval is required to serve the Article 50 ‘exit’ notice has added to the uncertainty around how, when and on what terms Brexit will be effected. This Government’s appeal against the finding means it will be late December – at the very earliest - before we know for sure what process the Government has to follow. The Government could, of course, pre-empt this by putting the matter to a Parliamentary vote but appears unwilling to do that.
Until then, today’s decision has to be treated with considerable weight. While the Supreme Court could overrule it, this was not a maverick or capricious decision by a junior judge. It was delivered by the most senior English judges outside the Supreme Court and represents an authoritative finding that the use of royal prerogative powers is more tightly constrained than the Government would like. It had initially been assumed that the Government’s arguments might prevail, but once the full arguments were published before the judgement it was clear the counter position was substantially stronger than expected. While the case raised important constitutional legal issues, if there was any expectation from lawyers or politicians that the senior English judiciary would be reluctant to interfere in such a politically sensitive matter, that was clearly mistaken.”
Brexit is likely to consume huge amounts of news space, Government activity and attention over the next few years. Decisions taken by the UK Government will affect all of us in a personal, professional and business capacity. How, when and to what extent is difficult to tell. At present it can seem like the only certainty is uncertainty.
Here in Scotland, there is further uncertainty given the significant divergence between the UK-wide vote and the preference of Scottish voters. The Scottish Government has been busy making various attempts to ensure the generally pro-EU preferences of the Scottish people are reflected in how Britain leaves the EU. A second independence referendum is one of the options which is being prepared for. If wide-ranging lawmaking and regulatory powers are repatriated from Brussels to the UK, under the current devolution settlement it would also be likely that these would be split between Westminster and Holyrood.
As lawyers and advisers to clients across Scotland and beyond, we are closely monitoring these developments. We know we need to bring major changes and developments to our clients’ attention and help them protect their interests in a changing and uncertain climate.
Thorntons operates a Brexit Group made up of key people representing all parts of the practice and our colleagues in Thorntons Investments. We are closely monitoring how the economy and the law will be affected by Brexit. Our people are participating in the national conversation and engaging in consultations with Government, political leaders and key clients to ensure we understand and can reflect emerging developments into our advice.
If we can help you please contact us at Brexit@thorntons-law.co.uk.