Today’s decision in the Supreme Court is a key moment in the process of Britain leaving the EU.
The implications of the case will take time to digest across Government, Parliament and the devolved governments in Scotland, Wales and Northern Ireland. Ultimately, the decision will not surprise most people who have followed the case to date.
Here is what we know today.
- The Court held that an Act of Parliament is required to serve the Article 50 notice that will begin the process of leaving the EU. This means we can expect lively Parliamentary debates on the detail of the process and, in particular, the risks and merits of the Prime Minister’s preferred approach.
- The indications are that the Bill will be very short and simple, leaving as little room for amendment as possible, and that it will pass. However, attempts to impose conditions and constraints on any such legislation through amendments are likely, and the role of the House of Lords (where it is less clear that a majority will vote in favour of triggering Article 50) in the process brings an element of unpredictability.
- The Court rejected the contention that the Scottish Parliament must consent to the decision to leave the EU. The Scottish Government argued that the Sewel Convention, as it now appears in the Scotland Act, required the Scottish Parliament’s consent to service of the notice owing to the effect of the Article 50 notice on the Scottish Parliament’s areas of responsibility. The Court ruled that the Convention is just that, a rule of normative good behaviour and a political rather than a legal matter.
Some people in Scotland might be disappointed at the clear finding that the Scottish Parliament has no ‘veto’ on the serving of the Article 50 notice. However, this was always going to be a challenging argument to make. The Sewel Convention states that the UK Parliament “will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”. It doesn’t say it must seek consent and cannot legislate in these areas without having done so. When is “normal” is, ultimately, for Parliament to decide. It is, indeed, hard to see what substantive change occurred when the convention was included in legislation. This also highlights that laws telling us what people and public bodies can and cannot do have considerably sharper teeth than declaratory laws which do little more than describe what typically happens on a day-to-day basis but try to create an impression of being more prescriptive than they are.
It is to be hoped the Government and its supporters will have a more muted and respectful approach to this decision than the ill-judged hysteria which greeted the High Court decision at the end of last year. The pro-Brexit press will not welcome the result but we will hopefully be spared headlines labelling judges as ‘enemies of the people’ and so forth. The Government will no doubt respond presenting this as a technical legal matter or dry clarification of process for which they have had time to prepare.
That businesslike response glosses over a couple of key facts. The Government’s original plan to exit the EU through the exercise of prerogative powers was, legally, wrong. We have to hope they are more prepared for the difficult discussions and decisions which lie ahead. There won’t always be an easy Plan B.
Liam McMonagle is a Partner in our Business Law department. If we can help you please contact Liam on the details below.