Brexit - the Supreme Court’s Ruling (24 January 2017)

We wrote about the High Court’s ruling on Brexit on 3 November 2016. The High Court ruled that the government could not give an Article 50 Notice, triggering the UK’s withdrawal from the European Union, without an Act of Parliament. The government appealed against this ruling.

Yesterday, the Supreme Court, by 8 to 3 majority, dismissed the government’s appeal. The government cannot give an Article 50 Notice, triggering the UK’s withdrawal from the European Union, without an Act of Parliament.

The decision in a nutshell

The problem before the court was the tension between two constitutional rules:

(a) the government cannot alone change UK domestic law made by an Act of Parliament; but

(b) the making and breaking international treaties is within the government’s prerogative powers.

The tension arises because the European Union was created by a series of treaties (made under prerogative powers), but these treaties, and European law, are given direct effect under the European Communities Act 1972 as UK domestic law. The Supreme Court majority carefully analysed the meaning and effect of the 1972 Act to arrive at this conclusion.

The Supreme Court accepted that giving an Article 50 Notice has the effect of taking the UK out of the European Union after 2 years (unless the EU Member States agree otherwise), so European law will cease to apply in the UK after an Article 50 Notice is given. Thus UK domestic law is changed. The Supreme Court majority showed that it was established by over 300 years of legislation and case law that the government cannot exercise its prerogative powers to have the effect of changing domestic law.

Therefore, the government’s giving an Article 50 Notice without an Act of Parliament is not possible under UK constitutional law.

What about the referendum result?

The Supreme Court reiterated that while the referendum vote was of great political significance, in law it was only advisory. Parliament knew that when it passed the European Union Referendum Act 2015, although the government was not clear in its statements to the public, with some ministers saying that it was binding and others saying it was advisory. The Attorney General submitted one worrying argument (para 115 of the Supreme Court’s judgment):  “the traditional view as to the limits of prerogative power should not apply to a ministerial decision authorised by a majority of members of the electorate who vote in a referendum provided for by Parliament.” This is an argument for mob rule, not representative democracy. The Supreme Court majority rightly rejected this out of hand.

The Supreme Court’s analysis preserves the sovereignty of the UK Parliament to make and unmake UK domestic law. It is hard to see how the Supreme Court could have come to any other conclusion without a radical reinterpretation of the UK constitution.

What about the Scottish Parliament?

The Supreme Court considered whether the devolved administrations must consent to serving an Article 50 Notice. The Supreme Court ruled unanimously that there is no legal requirement for the devolved administrations to give consent. EU matters are reserved to the UK Parliament.

The Scottish Government argued that consent from the Scottish Parliament to an Article 50 Notice was required under the “Sewel Convention”, because the legal effect of an Article 50 Notice would have far reaching consequences in devolved matters as well as reserved matters.

The Sewel Convention exists because the UK Parliament is sovereign throughout the UK and can legislate on all matters, whether devolved or not. The Sewel Convention says that while this is legally true, politically, the UK Parliament would not normally legislate in Scotland with regard to devolved matters without the consent of the Scottish Parliament. The Sewel Convention was incorporated into the Scotland Act 2016, but not as a binding rule of law, only as a formal recognition of the convention.

The Supreme Court only deals with law, not politics, and therefore would not enforce the Sewel Convention and require the devolved administrations’ consent to an Act of Parliament to authorise Brexit.

This is what to take away: the Supreme Court gave a decision in respect of the legal process for Brexit: it left the politics to the politicians.

Link: https://www.supremecourt.uk/cases/uksc-2016-0196.html

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For More Information Contact:
Andrew Fleetwood
Mobile: 07841 920101
Direct Dial: 0131 516 5365
Email: afleetwood@gilsongray.co.uk

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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.