Supreme Court dismisses Government appeal in relation to the Brexit process


This morning, by an 8 to 3 majority the Supreme Court dismissed the Secretary of State’s appeal in relation to the triggering of Article 50.

Lord Neuberger handing down judgment for the majority upheld the High Court’s decision that before notice can be given to the European Union of the UK’s withdrawal, an Act of Parliament is required.

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In reaching this judgment, the interpretation of s2 of the European Communities Act 1972 was central. Withdrawal from the EU involves a constitutional change due to the fact that it will be removing the EU as source of UK law, as permitted by s2.  The Lord Justices also gave as their reason the fact that withdrawal from the EU would remove rights of UK citizens, which is impermissible without Parliamentary authority.

On the issue of devolution, the Supreme Court unanimously decided that the UK Parliament is not required to consult with devolved legislatures (Wales, Scotland and Northern Ireland) and nor do the devolved institutions have the right to veto the decision to withdraw from the EU.

So what does this mean for us leaving the EU?

  • The judgment is not preventing the withdrawal from the EU, but requires Parliament to consult on the matter and produce an Act of Parliament prior to Article 50 being triggered.
  • The government’s intention to trigger Article 50 by March 2017 is no longer a set deadline. Whilst the government has already prepared draft legislation in foresight of this judgment, Acts of Parliament take time to be approved through the Houses of Commons and Lords, and each political party wants a different deal from the exiting process.
  • Scotland, Wales and Northern Ireland cannot veto Article 50 and legally do not have to be consulted. However, the government has previously pledged to involve the devolved institutions in the process. Scotland, which voted for Remain, are expected to take action to try to remain in the single market.

The judgment can be found at this link: https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf

Alternatively, you can access the press summary: https://www.supremecourt.uk/cases/docs/uksc-2016-0196-press-summary.pdf

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