The Supreme Court has ruled that the government must consult with Parliament before it can begin the formal process of leaving the European Union.
By a majority of eight to three, the Supreme Court justices ruled that the government “cannot trigger Article 50 without an Act of Parliament authorising it to do so”.
Theresa May had hoped that she could trigger Article 50 using the royal prerogative without letting Parliament decide on the direction of Brexit negotiations. However, as leaving the EU will strip UK citizens of certain rights, the Supreme Court held that only Parliament had such an authority.
Whilst the decision will come as a blow to the government, the justices did not determine the form the legislation to trigger Article 50 should take, and a simple and uncontentious Bill authorising the service of Article 50 would be sufficient and unlikely to be frustrated in Parliament.
Responding to the judgment, Lord Chancellor Elizabeth Truss said:
“Our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled the world over, and our Supreme Court justices are people of integrity and impartiality.
“While we may not always agree with judgements, it is a fundamental part of any thriving democracy that legal process is followed. The government has been clear that it will respect the decision of the court.”
Additionally, the Court ruled that despite their devolved powers, the government does not have to consult with the Scottish Parliament or the Welsh or Northern Ireland Assemblies to trigger Article 50 and begin negotiations to leave the EU.
Scottish first minister Nicola Sturgeon, commented:
“It is vital that the Westminster Parliament is now given the fullest possible opportunity to debate and decide upon the triggering of Article 50 and also the terms of the UK’s negotiating position. SNP MPs will seek to work with others across the House of Commons to stop the march towards a hard Brexit in its tracks.
We are obviously disappointed with the Supreme Court’s ruling in respect of the devolved administrations and the legal enforceability of the Sewel Convention.
“It is now crystal clear that the promises made to Scotland by the UK Government about the Sewel Convention and the importance of embedding it in statute were not worth the paper they were written on.
“Although the court has concluded that the UK Government is not legally obliged to consult the devolved administrations, there remains a clear political obligation to do so. Indeed, the court itself notes the importance of Sewel as a political convention.”
Trevor Tayleur, associate professor at The University of Law, outlined the result of the decision:
“The majority of the Supreme Court justices adopted the argument that succeeded in the High Court, namely that rights conferred by an Act of Parliament (the European Communities Act 1972) can only be removed by another Act of Parliament and not by royal prerogative powers. However, the government will be able to take considerable comfort from the fact that the Supreme Court said that it was up to Parliament to decide upon the form of legislation. Accordingly, a simple Bill authorising the service of the Article 50 notice will suffice, rather than the full-scale repeal of the 1972 Act. Moreover, the majority of the Supreme Court ruled that the government does not need the consent of the Scottish Parliament and the Welsh and Northern Ireland Assemblies to trigger Article 50. Consequently, the government can be confident that it will be able to adhere to its timetable of serving the Article 50 notice in March.
“Although the judgment is of great constitutional interest, its effect on the Brexit process is unlikely to be significant, as Parliament is likely to give the government the requisite authorisation.”