The government must now bring forward legislation
In November the government lost a case in the High Court on whether they had to consult parliament about the activation of Article 50 of the Lisbon Treaty which sets in process the UK’s withdrawal from the EU.
The essence of the case was that the government wanted to use the royal prerogative to activate Article 50 but the claimants argued that it was parliament’s job to debate the issue and repeal the 1972 European Communities Act, which brought EU law into UK law. The government appealed to the Supreme Court arguing that the prerogative power to enter into treaties, which had been widely acknowledged as governed by prerogative power, applied to Article 50.
Today in a split decision the Supreme Court held that the government needs to consult parliament and pass legislation in order to activate Article 50. There are five big issues about what happens now.
1. Legislation is required
On 7 December, while the Brexit litigation was ongoing, the House of Commons debated and passed a resolution calling on the government to trigger Article 50 by the 31 March this year, which led to some speculation that this satisfied the original court decision. The judges for the majority in the Supreme Court said that a ‘resolution of the House of Commons is not legislation’.
Because the 1972 Act had brought EU law into domestic law ministers could not use prerogative powers to effectively negate the impact of an act of parliament but needed to expressly repeal it.
Lord Reed in his dissenting judgment argued that the situation differed from other cases involving the royal prerogative as there was no statutory framework for repealing Article 50 therefore the prerogative power was as a matter of constitutional principle. Several constitutional law scholars are already highlighting this dissent as being crucial for future constitutional developments.
2. Repeal legislation is going to be very simple but still cause delays
David Davis, the Secretary of State for Exiting the European Union, confirmed in his parliamentary statement in response to the judgment that he was drafting ‘the most straight-forward bill possible’ to activate Article 50. In common with all Bills, this has to go through both Houses of Parliament so it is possible that it could face numerous amendments or be subject to significant delays before in becomes law.
By making the legislation as simple as possible the government are hoping to turn this into a vote on the fact of leaving the EU rather than the nature of Brexit a move that is politically savvy given that a majority of the public believe that the referendum result should be respected.
However, as Robert Hazell and Alan Renwick note the speed at which any Bill passes is largely dependent on the timetabling motion which could potentially cause delays as it did with House of Lords reform in 2012.
Opposition MPs are now demanding a White Paper be published prior to any vote (which is normal practice for legislation of this nature) but Davis seems hostile to this indicating where the next constitutional battle may come.
3. The devolved governments do not matter
The devolved governments in Northern Ireland, Scotland and Wales, intervened on behalf the original applicants supporting their claim but went one step further that the devolved Parliaments and Assemblies should be consulted as well.
The precise status of the devolved authorities on this question was unclear and was complicated politically by the fact that two constituent nations of the UK – Northern Ireland and Scotland voted to Remain. All 11 judges were however unanimous in deciding that there was no legal obligation to consult the devolved authorities, let alone any suggestion that they should have to actually subject it to votes an individual scrutiny.
This decision was on two grounds; firstly the relationship between the devolved authorities and the Westminster Parliament on this point was governed by a convention not statute, meaning that it is not open for the courts to intervene on this point. When this argument was made in the Supreme Court hearing it received some academic criticism and it is likely that one of the most important legal consequences of this judgment will be the clarification of this convention’s legal status.
Secondly this case was about the UK’s relationship with the EU which was governed by a UK wide statute and therefore a matter for the UK parliament. Politically this is controversial; Nicola Sturgeon the Scottish First Minister’s said that this was a sign that ‘Scotland’s voice is simply not being heard or listened to within the UK’ potentially lining up arguments for a second referendum.
Northern Ireland is also having elections on the 2 March following the collapse of the government earlier this month and the Alliance party has issued a statement warning that the judgment threatens the 1998 Good Friday Agreement.
4. We have no idea still what the status of referendums are in the UK’s constitution
Paragraphs 116-124 of the judgment highlight the problem that direct referendums face in the UK constitutional system. If parliament is the supreme source of law direct plebiscites are legally advisory, unless parliament has expressly authorised them to be binding, as they did with the 2011 referendum on the Alternative Vote system.
The clarity of the Supreme Court on this point means that the debate about holding any referendum in the future is likely to focus on whether it is binding or advisory, out of concern that the implementation of that referendum’s outcome could vary depending on the composition of parliament.
5. Political parties need to step up
As with the High Court decision the judges in the Supreme Court were at pains to emphasise this was not about the politics of leaving the EU. After the High Court many right wing newspapers attacked their decision as a plot to undermine the referendum result. The Supreme Court however was clear that it is now over to the politicians to enact legislation.
Leave campaigners will want to paint those who vote against the forthcoming Bill as antidemocratic. However, all opposition parties should constantly remind the public that this is a piece of legislation and as MPs they are entitled –as they are with any other piece of legislation – to try and amend it reflecting the interests of those they represent.
Politically the Labour Party is an appalling bind as it has MPs representing both the 46 most pro-leave constituencies and the 41 most pro-remain constituencies.
With the nationalist parties increasingly concerned by the constitutional question of devolution amendments may be the main way for opposition parties to shape what Brexit looks like.
Dr Frederick Cowell is a lecturer in law at Birkbeck College, University of London and has a book entitled ‘Critically examining the case against the 1998 Human Rights Act’ being published next year.
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