Article 50: Supreme Court rules against the government

What happened?

The Supreme Court has ruled by a majority of eight to three that the government cannot use Royal Prerogative to trigger Article 50. Instead, it must pass a bill through the House of Commons and House of Lords. The decision was, in many ways, not a surprise, and the government had reportedly been planning for the losing outcome, for some weeks, beginning the early stages of preparing a bill for introduction in the Commons.

Whilst the loss will have frustrated the government, it will have been relieved by the court’s unanimous ruling that the Sewel Convention is not a legal obligation and therefore devolved legislatures do not have the power to veto Article 50.

The judgment rested on the nature of the European Communities Act 1972 (ECA) - which gave effect to the UK’s membership of the EU. The majority agreed that the terms of the ECA are inconsistent with allowing withdrawal from the EU without authorisation by an Act of parliament. This is because withdrawal from the EU makes a fundamental change to the UK’s constitutional arrangements, by cutting off the source of EU law, and this fundamental change is inevitable once Article 50 has been triggered. The UK’s constitution requires such changes to be effected by parliamentary legislation.

The judgment ruled on the nature of the bill that the government will now seek to pass through the Commons and Lords, stating that “ministers require the authority of primary legislation” before they can invoke Article 50. In addition, the judges explicitly noted that a resolution of the House of Commons is not legislation. However, beyond this, the judgment states that “what form such legislation should take is entirely a matter for parliament”.

What next?

Secretary of State for Exiting the EU, David Davis MP, confirmed in his statement to the House of Commons that the government will introduce a bill to trigger Article 50 “within days”. Despite the government’s preparedness and desire, time in the legislative agenda will need to be found for debate and it is worth noting that parliament rises for recess on 9 February 2017 and returns on 20 February 2017.

The Supreme Court’s ruling that relations of the EU and foreign affairs are reserved for the UK government and not devolved intuitions remove an otherwise major roadblock for the government. Despite the Welsh population voting to leave the EU by majority, the Welsh Labour Party, Plaid Cymru and the Welsh Liberal Democrats have raised major objections and protestations about the nature of Brexit - issuing a joint policy platform to maintain access to the single market.

Similarly, in Scotland, First Minister Nicola Sturgeon has consistently campaigned against the government in Westminster taking Scotland out of the single market. The reintroduction of the Joint Ministerial Committee by Prime Minister Theresa
May means the Scottish government and devolved assemblies will not be sidelined in the Brexit process, but the Supreme Court’s ruling nullifies their ability to exert influence directly.

Could parliament stall the process?

The Supreme Court ruling said the bill could be “very short indeed, but that would not undermine its momentous significance”.

In an effort to ensure the bill passes both Houses, the government will almost certainly present the bill in as short and concise manner as possible. Doing so will limit the number and nature of amendments that hostile members of parliament can table in an attempt to slow the legislative process.

Despite their slim majority, the government can still be confident of securing the numbers to pass the bill.

The position in the House of Lords remains less clear, owing to convention. The Conservative Party manifesto on which it was elected in 2015 pledged to ‘safeguard British interests in the single market’. That position has changed in the context of Brexit and Theresa May’s ‘blueprint for Brexit’ speech, in which she said the UK “cannot possibly” remain within the single market. Whereas the manifesto commitment was to the single market and the Conservative government is now pursuing the reverse, the policy shift means the Salisbury Convention (whereby Lords refrain from voting down manifesto pledges) does not apply.

Nevertheless, speaker of the House of Lords, Lord Fowler, has made clear that Peers will not sabotage Brexit. Instead, their role may be reduced to one of frustrating the government, tabling amendments seeking to extract concessions from the government and influencing its Brexit negotiating stance.

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