The Supreme Court has handed down its highly anticipated judgment in the Brexit case. This was, in part, an appeal against the High Court’s decision that an Act of Parliament is required to trigger Article 50 of the Treaty of the European Union (TEU).
The Supreme Court joined three Brexit-related cases together, and was asked to answer the following questions:
- Is an Act of Parliament required to trigger Article 50 TEU (the procedure by which a Member State may withdraw from the European Union)?
- If an Act of Parliament were required, would the Northern Irish Assembly need to consent before that Act was passed?
- Does leaving the EU change the Northern Ireland constitution, and therefore does it need the consent of the Northern Irish people?
- Does the Scottish Parliament need to be consulted before triggering Article 50?
Before we get to the judgment, let’s start with the basics.
Wait, there’s a difference between Parliament and Government?
Yes there is! Parliament is the UK’s legislature (law maker). It has two ‘houses’: laws are debated by Members of Parliament in the House of Commons and amendments are proposed and discussed in the House of Lords. Parliament is separate from the Government. The Government – also known as the ‘executive’ – is made up of MPs from the political party/parties with the largest numbers of MPs in the House of Commons.
What are these ‘prerogative powers’ and why do they matter?
The main claim in the Article 50 case, brought by lawyers for Gina Miller, was based on an important constitutional principle, namely that the Crown – in modern terms, the Government – cannot use its ‘prerogative powers’ to remove rights that exist in domestic law unless Parliament has clearly allowed it to. Prerogative powers are powers that used to be exercised by the Monarch, and which are now powers held by the Government, for example, in relation to foreign affairs, defence and national security. The Government can generally use its prerogative powers without needing to ask Parliament first.
So why was this case about our rights?
Central to the case was the argument that triggering the Article 50 process would have the effect of taking people’s rights away, and particularly those which flow from membership of the EU. As we have written before, EU membership has given us some important rights, for example relating to employment (maternity leave and maximum working hours), travel around Europe and protection of personal data. The court said that it was at least possible that triggering Article 50 would lead to the loss of those rights.
Now to the issues the court had to decide.
Is an Act of Parliament necessary?
Yes. The Court decided by a majority of eight to three that the government cannot trigger Article 50 without an Act of Parliament authorising it to do so. The judges ruled that “an action of such importance to the UK constitution” as withdrawing from the European Union and EU Treaties could not be taken without Parliament voting on it first.
And, that vote would have to involve an Act of Parliament, which means it will have to be considered by the House of Commons and the House of Lords. The Court said that it could be a short Act, but it had to be an Act.
Speaking outside of court, Attorney General Jeremy Wright, who has represented the government in the case, said that the government was “disappointed” but will “comply” with the court’s decision.
What about the Northern Irish Assembly?
On the second point, it ruled that the Northern Irish Assembly’s consent is not needed before the UK Parliament can pass the Act which will trigger Article 50.
And the people of Northern Ireland?
The Court’s answer to the third question was also a definitive “no.” Although the Northern Ireland Act 1998 gives the people of Northern Ireland the right to vote on whether to remain part of the UK, it makes no reference to other changes in Ireland’s constitution – such as its membership of the EU.
The judges therefore decided that, although leaving the EU changes Northern Ireland’s constitution, there is no law which actually requires the Northern Irish people to vote in favour of this change before it can take place.
What about Scotland?
The Court said that the Scottish Parliament’s consent would not be needed before Article 50 was triggered. This was despite something called the ‘Sewell Convention” which means the Westminster Parliament will usually consult the Scottish Parliament on key matters relating to devolution.
So what happens now?
The ball is now in Parliament’s court. Theresa May’s government will have to propose a bill which will then be voted on by the House of Commons and House of Lords. For it to become an Act of Parliament, and for that to happen quickly, a majority of both houses will need to vote in favour of the bill – the House of Lords cannot block a bill forever but it could delay it passing for up to a year. The Court was clear that it could be a short bill.
So, it could all happen very quickly – but in the world of Brexit, there are likely to be more surprises in store.
Check out the links below for more on Brexit and human rights:
- You can read the Supreme Court’s full decision here.
- Government loses Brexit challenge.
- Theresa May’s plan for Brexit and what it means for human rights.
- Fundamental rights are not a Brexit bargaining chip – Human Rights Committee