The government has failed to overturn last year’s controversial High Court ruling that Article 50, the mechanism for withdrawing from the European Union, cannot be triggered without an act of parliament.
By a majority of 8-3, the Supreme Court upheld the ruling that the secretary of state for exiting the European Union does not have power, under the Crown’s prerogative, to give notice pursuant to Article 50 of the Treaty on European Union for the UK to withdraw from the EU.
On a related issue, the court ruled that the devolved governments of Scotland, Wales and Northern Ireland do not have a veto on the UK’s decision to withdraw from the EU.
Announcing the decision, Lord Neuberger said the court’s decision had “nothing to do with whether the UK should exit from the European Union or the terms or the timetable for that exit”.
But in his leading judgment, he said: “Where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through parliamentary legislation.”
He said that the form such legislation should take is “entirely a matter for parliament”, and that it could be achieved with a very brief statute.
He added: “A notice under Article 50(2) could no doubt be very short indeed, but that would not undermine its momentous significance.”
See also: City and Westminster launch post-Brexit manifesto
Reacting to the judgment, Andrew Lidbetter, a disputes partner in public law practice at Herbert Smith Freehills said: “In a landmark decision, the Supreme Court has today found against the government and upheld the constitutional principle of the supremacy of parliament, confirming that the executive cannot rely on prerogative powers to override rights conferred through legislation enacted by parliament.
“It remains too early to know precisely how this will shape the government’s approach to Brexit. It is, however, now more difficult to see how the government will be able to continue the approach it has taken so far to the timetable for serving notice by the end of March 2017, unless parliament quickly confers a power to trigger Article 50 without adding substantive qualifications, limitations, or additional requirements.”
See also: What’s next for Brexit?
At the appeal last month, the attorney general Jeremy Wright QC had argued that the High Court had been “wrong”.
He said: “We say the use of the prerogative in these circumstances would not only be lawful but fully supported by our constitutional settlement, in line with parliamentary sovereignty and in accordance with legitimate public expectations.”
Article 50 sets out the procedure by which a member state that has decided to withdraw from the EU achieves that result. The government had intended to give notification under Article 50 and to conduct the subsequent negotiations, in exercise of prerogative powers to conclude and withdraw from international treaties.
Article 50 and the Supreme Court: the story so far
From November: UK government loses Brexit Article 50 court case
From July: Starting gun fired in Brexit legal challenge
• To send feedback, e-mail jess.harrold@estatesgazette.com or tweet @jessharrold or @estatesgazette
