As the Supreme Court rules against the government in the constitutional case of the century, David Mundy and Oliver Spencer outline the court’s findings and examine what must happen now for the UK to leave the EU
The Supreme Court (by a majority of 8-3) has shed important new light on the nature of the UK’s unwritten constitution.
The Supreme Court considered that the “unprecedented effect” of the European Communities 1972 Act was to authorise a “dynamic process” under which EU law not only became a source of UK law, but took precedence over all domestic sources of UK law, including acts of parliament.
The court decided that it would be inconsistent with long-standing constitutional principles for ministers to make a fundamental legal change (ie triggering Article 50 leading to the loss of a source of UK law) without an act of parliament.
So the government needs Westminster to pass an act of parliament to trigger Brexit.
A Brexit bill
The Supreme Court did not give any ruling as to the form and content of the bill required to formally begin the Brexit process.
In political terms, there may be little practical significance to the Supreme Court’s decision. The House of Commons has voted on a motion to trigger Article 50 before 31 March and the Lord Speaker has confirmed that the Lords will not delay or derail Brexit. Previous suggestions of the need for a “bullet proof” bill may therefore prove to be overstated.
Further, the prime minister’s announcement that parliament will have a binding vote on the terms of the exit deal agreed with the remaining 27 EU member states may mean that the triggering of Article 50 is less of a flashpoint.
It is clear from the prime minister’s speech that parliament will be faced with the prospect of either approving the exit deal that has been negotiated or else face the prospect of the UK leaving the EU without any formal exit arrangements in place – with the uncertainty and instability that would entail.
The devolution element
Arguably as important a constitutional implication of the Supreme Court’s decision is its consequences for another union – the United Kingdom.
The court unanimously held that parliament is not legally required to consult with the devolved legislatures in Scotland, Wales and Northern Ireland before triggering Article 50. Likewise nor do the devolved regions have a “veto” on Brexit by being required to consent to the bill authorising Article 50. This lack of control will smart with the Scottish and other devolved legislatures but whether it prompts further, clarifying court cases remains to be seen.
In the case of Scotland, the Supreme Court viewed the Sewel Convention (which requires Westminster “normally” to seek consent when legislating on devolved matters) as a political convention, which the courts had no role in policing. This is so even though parliament has codified the convention in an act of parliament.
Is Brexit still on track?
The Supreme Court’s judgment follows the prime minister’s major speech last week setting out her initial negotiating position. The government is expected to publish a detailed paper on its Brexit negotiating aims in February.
There is little chance that parliament will refuse to give its consent to the Article 50 bill, but whether the political parties will try to make the government’s life difficult in getting the bill through parliament and whether there are any political concessions which the government will be obliged to make, is anybody’s guess.
David Mundy is a partner and Roll A Parliamentary Agent; Oliver Spencer is a trainee solicitor at Bircham Dyson Bell LLP
