Supreme Court Brexit judgement

This morning the Supreme Court handed down its judgement in the ‘Brexit case’, which included two other related cases from Northern Ireland.¹

Broadly speaking, two questions were put before the court:

1. Does the Government have the power to invoke Article 50 without the consent of Parliament, using a technique called the Royal Prerogative?
2. Do the devolved Parliaments/Assemblies of Scotland, Wales and Northern Ireland need to be consulted before Article 50 is invoked, and if so does that consultation also require consent?

The courts had four options open to them:

1. Allow the use of the Royal Prerogative to invoke Article 50, bypassing Parliament altogether. This would have been a total victory for the Government, who had argued that this was a legally correct course of action.
2. Require the consent of the UK Parliament to invoke Article 50. This was what the original claimants argued for, and would be an inconvenience for the Government.
3. Require either the consultation or consent of the devolved Parliaments and Assemblies to invoke Article 50. This would have been a disaster for the Government, given that they only command a majority in the UK as a whole and not in the devolved regions.
4. Refer the matter to the European Court of Justice. This would also have been a disaster for the Government, and would have opened up another can of worms about whether the ECJ could prevent or place conditions on a country wishing to leave the EU.

The substantive issue at the core of the case was the use of the Royal Prerogative, which is a device that enables the Crown to take action without approval from Parliament. In practice this means Her Majesty’s Government, in the form of ministers such as the Secretary of State for Exiting the European Union.

The extent of the Royal Prerogative has been curtailed over the years, usually by passing Acts of Parliament.² However, one power which still exists is that the Crown can enter into and exit from treaties without the consent of Parliament. Normally this is not an issue, but in this case there is a piece of legislation, the European Communities Act 1972, which legislated for the UK joining the predecessor body to the EU.

Now we have a problem. The Royal Prerogative cannot be used to change law made by Acts of Parliament, and leaving the EU would likely require the amendment or repeal of lots of legislation, not least the 1972 Act. It could be argued that, as the 1972 Act would still be in force and would still govern our membership relationship with the EU, invoking Article 50 would not actually change the law. Even once the UK had left the EU, the 1972 Act would continue to govern our membership, it would just have no effect because we would no longer be a member. I think this is tenuous and pedantic, but we appoint highly experienced judges to make these decisions for a reason.

In the end, the Court ruled by a majority of 8-3 that the Royal Prerogative could not be used to invoke Article 50, so the UK Parliament will have to pass legislation to start the process. This is frustrating for the Government, as it will delay matters and they may not meet their arbitrary deadline of the end of March, but it will not stop them. The Government has a small majority in the House of Commons and defeating them would require rebellions or abstentions on the Conservative side, even if the other side of the House unanimously opposed the ‘Article 50 Bill’. Given that Labour has already indicated that it will not oppose Article 50 notification in principle – though it may put forward amendments – this means Article 50 notification will happen in the next couple of months.

As for the devolution option, unfortunately the Court ruled unanimously that there is no requirement to obtain consent, or even to consult. The reason why can be seen from section 28 of the Scotland Act 1998, which covers Acts of the Scottish Parliament (Wales and Northern Ireland have similar legislation):

s28(7): This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

s28(8): But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.

It is clear from the above that, whilst the Scottish Parliament can expect to be consulted on legislation, this consultation is not guaranteed and in any case the consent of the Scottish Parliament is not required. As the judges point out, a convention like the one above is political, not legal. Courts cannot rule on anything other than legal matters, and attempts to enforce political conventions in the courts can and do fail. There may of course be political consequences for ignoring a convention, such as a reduction in votes at the next election, but this is not an area where the courts can or should interfere.

For people who were pro-Remain, the demolition of the devolution argument is unfortunate, as it had the potential to derail the whole process if, for example, the Scottish Parliament was able to veto a notification under Article 50. However, it was always a fragile argument and I can’t see any other way in which the judges could have interpreted the legislation.

One final note: the question of whether a notification under Article 50 can be withdrawn or given in qualified or conditional terms (e.g. subject to a second referendum) was not fully addressed. Partly this was because, as the judgement put it, it is ‘common ground’ that the notification cannot be withdrawn, and also because it would make no difference to the outcome of this case. One could therefore argue that, whilst the Article 50 notification is unlikely to be stopped, it might be possible to withdraw it at a later date. Even if this is not possible under the law as it stands, there is always the option, if you could get sufficient agreement in the EU, to add an exception to Article 50 allowing the UK to withdraw its notification. After all, it’s not as if we don’t already have opt-outs from lots of other things…

1. Article 50 Brexit Appeal
2. If a statute and the Royal Prerogative disagree, the statute ‘wins’. Since Acts of Parliament require Royal Assent, the Crown has effectively agreed to the curtailment, even if Royal Assent is now a formality.