Brexit: Article 50 and the Supreme Court

IIEA30th January 20177min

On Tuesday, 24 January 2017 the UK Supreme Court issued its judgement declaring that an Act of Parliament is needed in order for the UK to trigger Article 50 of the Treaty of the European Union. The Court further ruled that UK ministers are not legally compelled to consult the devolved governments of Scotland, Wales and Northern Ireland prior to triggering Article 50.

The ruling, which was supported by eight of the eleven Supreme Court justices, brings to a close the case brought by lead claimants Ms Gina Miller, a London investment manager, and Mr Dier Dos Santos, a hairdresser who holds dual Brazilian and British citizenship.

Theresa May’s Government responded by putting a strikingly brief Bill, just 130 words in length, before Parliament, to be debated by MPs over the coming two weeks. The first reading will take place on Tuesday 31 January. It is expected to progress to the House of Lords after 8 February, when the House of Commons committee stage ends.

The Prime Minister has also indicated that a white paper on the Government’s Brexit strategy, separate to the Article 50 Bill, will be published before the UK gives its notice of withdrawal to the European Council.

 

The Court’s Reasoning

On the issue of whether the UK Government could trigger Article 50 without authorisation of Parliament, the court ruled that the Government’s proposed use of prerogative power was unconstitutional, since invoking Article 50 would ultimately alter domestic UK law.

In relation to the primacy of EU law, the Court highlighted Section II of the 1972 European Communities Act, under which EU law has become an “independent and overriding source” of UK law. In his presentation to the court, Lord Neuberger stated that when the UK withdraws from the EU, this source of law would be “cut off”, a move which would ultimately result in the modification or abrogation of rights of UK citizens derived from EU law.

In response to the Government’s arguments that the UK referendum on membership of the European Union removed the need for parliamentary approval, the judges stated that the referendum was “political rather than legal” in nature. The court ruled that the 2015 Referendum Act, on the basis of which the UK’s EU referendum was held, did not remove the need for parliamentary authorisation because the Referendum Act did not make any provision for the consequences of that referendum.

On the second central issue of the case, the question of consulting devolved governments prior to giving notification under Article 50, the Supreme Court noted that the devolution Acts all maintain that relations with the EU fall under the jurisdiction of the UK Parliament. The court noted that the purpose of the limitations on devolved governments to adhere to EU legislation was to ensure that the devolved institutions would not place the UK in breach of its obligations under EU law. Moreover, it ruled that the imperative for consultation with devolved powers stemming from the Sewel Convention is a political convention and thus devoid of legal force.

In the case of Northern Ireland, the court recognised the right of the Northern Irish people to decide their constitutional status with regard to being a part of the UK or Ireland, but ruled that this right did not extend to a veto on the question of EU membership.

 

Responses of Devolved Governments

In Scotland, the Article 50 ruling was met with disappointment from the Scottish National Party (SNP). Following the handing down of the Supreme Court judgment, SNP leader Nicola Sturgeon indicated that the need for another referendum on Scotland’s independence was becoming “ever clearer”. Ms Sturgeon criticised the UK Government for not asking Scotland for its consent – a development that she considers to be a failure to respect the Sewel Convention. She said she would fulfil her promise to table a legislative consent motion in the Scottish Parliament on the triggering of Article 50.

In Northern Ireland, where an election has been forced by the resignation of the Deputy First Minister, Martin McGuinness, the ruling will be a further complication in relations between the pro-Leave DUP and Sinn Fein, who campaigned to stay in the European Union. Sinn Fein have said they will not end their policy of abstentionism to vote on the Article 50 Bill in the UK Parliament, but SDLP leader, Colum Eastwood, said his party would represent the wishes of the people of Northern Ireland and vote against the Bill in Parliament.

 

The Article 50 Bill

The Bill proposed to by Secretary of State Davis reads as follows:

 

European Union (Notification of Withdrawal) Bill (HC Bill 132)

A Bill to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—  

1. Power to notify withdrawal from the EU

(1)The Prime Minister may notify, under Article 50(2) of the Treaty on European
Union, the United Kingdom’s intention to withdraw from the EU.

(2)This section has effect despite any provision made by or under the European
5Communities Act 1972 or any other enactment.

 

The Bill is likely to pass both Houses of Parliament, though some amendment is likely. Considering the UK Government’s resistance to seeking parliamentary approval for triggering Article 50 in the first place, it is reasonable to suppose that the Government will hope to avoid substantive additions to the text, particularly those that may frustrate or prolong the process of EU withdrawal. However, the Government cannot prevent the bill from being amended.

Labour will table nine amendments that they say would allow for greater scrutiny, but which will not frustrate the process of exiting the EU. Some of these amendments, including provision for a second vote in parliament on the outcome of the negotiations;  guaranteeing rights of EU citizens presently residing in the UK; and consultation with the devolved Governments, echo statements by Mrs May and may have a reasonable chance of success.

However, the debate has underlined once again the divisions in Jeremy Corbyn’s Labour party. Two of his shadow cabinet, Mr Daniel Zeichner and Ms Tulip Siddiq have already indicated that they will defy the “three line whip” imposed by the party and vote against the bill. Ms Siddiq subsequently tendered her resignation over the matter. Other Labour MPs, including former leadership challenger Owen Smith, and a Labour whip, Jeff Smith MP, have also publicly indicated their intention to defy the orders.

 

As for the other major parties, the pro-Remain Scottish Nationalist Party, have indicated that they will propose at least 50 “serious and substantive” amendments to the Bill, and the Liberal Democrats have said they will table an amendment requesting that the UK seek to maintain access to the EU Single Market.

 

Time is likely be a key factor for the upcoming debate, however – the Government has provided for just five days of debate for MPs over the coming fortnight, after which it will be sent to the House of Lords.

 

The bill may face a stiffer challenge in the Upper House, where peers do not have to answer to constituents, but again, it is highly unlikely that they would vote against the wishes of Parliament and the British people. Nonetheless, they may have more success in tabling amendments to the bill.

 

Conclusion

In spite of expected opposition from pro-Remain MPs it is highly likely that the Article 50 bill will pass through the House of Commons and House of Lords. Some amendment is possible, but any changes are unlikely to frustrate the process of withdrawal.

MPs will have one further opportunity to vote on the UK’s EU withdrawal, as the consent of Parliament will also be required for the UK to leave the European Union when a deal between the UK and EU has been agreed. However, that final vote may amount to little more than a Hobson’s choice: take the deal the UK Government has negotiated, or leave the EU with no deal and no framework for the future relationship. Thus the debate on the Article 50 Bill, and the coming debate on the Government’s expected White Paper, may amount to the most significant input the Houses of Parliament will have in shaping the Brexit process.