Ten lords and one lady justice of the Supreme Court decided by an 8 to 3 majority that triggering Article 50 (“the Brexit clause”) of the Treaty of the European Union (“TEU”) requires the authority of parliament. And so an exercise of the prerogative power which the government relied on does not amount to making a decision “to withdraw from the Union in accordance with its own constitutional requirements” as required by the Brexit clause.
The Supreme Court’s decision upholds the earlier decision of the High Court, where by an absolute majority of three judges the High Court came to the same conclusion. And so on a judicial head count, only three judges supported the government’s argument and 11 did not. The loss is even more significant for the government given that all of the most senior judges, the Supreme Court’s president and vice-president and the High Court’s Lord Chief Justice and Master of the Rolls, rejected the government’s argument.
And but for two citizens, Gina Miller and Deir Tozetti Dos Santos, taking this matter to court the government would have been acting unconstitutionally when it triggered Brexit. Not only did Miller and Dos Santos’s court action put the government on the right track but it also saved the government from humiliation had the matter come before the High Court and Supreme Court immediately after the government triggered the irreversible Brexit clause. Clearly, such matters are suggestive that the government is out-of-touch with constitutional law. The government is indeed indebted to Miller and Dos Santos.
It is important to appreciate that the Supreme Court and the High Court went to great lengths to assure the people that the courts were not judging the merit of their vote to leave the EU. And for good measure, the courts made the additional point that they have no jurisdiction whatsoever to make such a judgment. Unfortunately, even after the Leveson Inquiry, those authoritative words were menacingly brushed to one side by some members of the mainstream media.
The most significant effect of the Supreme Court’s decision falls on the devolved parliaments of Northern Ireland and Scotland. The Supreme Court was also asked to consider the question as to whether consultation with, or the agreement of, the devolved parliaments is required before triggering the Brexit clause on the grounds that the Sewel Convention states that the UK parliament will not normally legislate on devolved matters absent the agreement of the devolved parliaments. By an absolute majority of 11 judges the Supreme Court held that the Convention was not legally binding on the UK parliament. So it is open to the UK parliament to determine whether or not consultation or agreement with the devolved parliaments will be part of the Brexit process.
Prior to the Supreme Court’s decision, the UK government gave an assurance that the devolved parliaments would be part of the Brexit process. Time will tell whether that assurance is hollow or measures up to the level which satisfies the requirements of Northern Ireland and Scotland. At face value it is not possible for the assurance to meet those requirements because a majority of voters in Northern Ireland and Scotland voted (56% and 62% respectively) to remain in the EU. And the Supreme Court’s decision removes the possibility that Northern Ireland and Scotland’s parliaments might have a right to veto triggering the Brexit clause.
Seemingly, if the Northern Irish and Scottish parliaments are prevented from enforcing the will of their voters then they are obliged to put a referendum to those voters asking whether or not they want to leave the UK and apply for membership of the EU in their own right. Alternatively, Northern Ireland and Scotland might first explore whether an appeal is open to them in the European Court of Justice.
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This post was written by Mark Horner