On 24 January 2017 the UK Supreme Court upheld the earlier decision of the English High Court, and confirmed that the UK Government needs the UK Parliament’s approval before a notice under Article 50 of the treaty on the EU may be given. This notice will commence the process for the withdrawal of the UK from the EU. Following this decision, the UK Government moved swiftly to introduce a Bill, which has been debated and passed in the House of Commons, and is now moving into the Committee Stage. To that extent, the law has been clarified, and the way paved for the gargantuan political task of negotiating towards ultimate withdrawal from the European Union.

The Supreme Court ruled by a majority of 8 to 3 judges, with the dissenting judges asserting that in their view there was a need for an Act of the UK Parliament before an Article 50 notice could be given. For more detail on the arguments which were rehearsed, our “Part 1” blog on 7 November 2016 sets these out. In practice, on the primary issue, there was little of import added to the arguments.

Thus it can now be asserted that it is a fundamental principle of constitutional law in the United Kingdom that legislation is necessary to authorise the giving of notice where such notice will directly lead to much law ceasing to have effect in the UK as a “curtain-raiser” to the potentially rumbustious process which will lead to the UK withdrawal. The political and media responses to the court action being brought may yet be a harbinger of the coming political storms, both within the UK and in the EU itself.

On 2 February 2017, the UK Government’s Brexit strategy was published in outline (Cm 9417) alongside the Government White Paper. Twelve principles were enunciated, including the desire for an orderly withdrawal.

  1. THE CASE The arguments which were dealt with in the case were rehearsed and discussed in our earlier blog. In addition, and of interest or importance to Scottish constitutional affairs, was the treatment of new matters raised relating to the Sewel Convention.    
  2. SCOTLAND The Lord Advocate, James Wolffe QC, made representations to the UKSC on behalf of the Scottish Government. The Lord Advocate asked the court to make an order that the UK Government required to seek the consent of the Scottish Parliament before triggering Article 50 (or at least before any legislation could be passed). The Scottish Government’s reasoning for this was that the “Sewel Convention” requires that the UK Parliament will not “normally” legislate in relation to devolved matters without the consent of the Scottish Parliament. Whilst the decision relating to the requirement for legislation in the UK Parliament was by an 8 to 3 majority, in contrast the decision that the Sewel Convention was not justiciable was unanimous. The court took the view that the Sewel Convention was, in effect, a matter of politics. Relations with the EU and other foreign affairs matters are reserved to the UK Government and Parliament. Whilst the Sewel Convention “holds an important role in the operation of the UK constitution” the policing of its scope and operation was not within the constitutional remit of the court. The devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU. The Lord Advocate had already conceded this point.The question arose as to whether the fact that Section 20 (8) of the Scotland Act 1998 enshrines the Sewel Convention in statute, might change its status in some way. The court confirmed that it does not. The court also made the point that removal of EU constraints will in practice alter the competence of the Scottish Parliament unless new legislative constraints are introduced. In practice, withdrawal from the EU would “enhance the devolved competence”. Again, that is clearly a matter for politicians – they will have to decide how much of that is to lie ultimately with the Scottish Government and how much with the UK Government. In essence, the matter is therefore returned to the rumpus of the political arena. The First Minister of the Scottish Government has indicated there will be a vote in the Scottish Parliament on triggering Article 50 on 7 February. No doubt the UK Government will have the option of “considering” the outcome of that vote. In constitutional terms, this will be of no consequence, following the court’s decision. There were additional devolution issues raised relating Northern Ireland, and they have been the subject of much comment elsewhere.    
  3. COMMENTS The decision paves the way for formal commencement of the withdrawal process. To that extent, it is “over to the politicians”. The early indications are that the House of Commons will not stand in the way of Brexit. That said, politicians have been known to be highly creative in introducing amendments to a Bill, and so there remains scope for the government’s intentions to be revised, and indeed for the prospect of slippage on the March timeline (although the UK Government has indicated that it is steadfast in its intention to hold to that timeline). According to the House of Commons paper number 7867 dated 16 January 2017, there are come 19,000 EU legislative acts in force in the UK. The Great Repeal Bill, when it arrives in the UK Parliament, will be a momentous event in UK political, economic and social history.For businesses and individuals, the key issue remains what is our future trading relationship to be with the EU? These matters are likely to be played out almost exclusively in the political arena, notwithstanding the prospect of further litigation related to Brexit (including a case being brought before the Irish Courts in which a reference has been sought to the Court of Justice of the EU on whether the UK’s Article 50 notice can be revoked at any time). As mentioned in the Part 1 blog, there remains the prospect of a UK general election being called depending upon how matters play out in Parliament over the coming weeks. At the very least, that would, in effect, give the UK electorate an opportunity to vote on the relationship between the UK and the EU, as regards the single market, the EU itself, and otherwise. In commercial terms, much uncertainty remains, and a road-map is (arguably) yet to appear. In a year not only of Brexit but of a tumultuous new political landscape in the U.S.A., one is reminded of the supposed old Chinese curse: “May you live in interesting times”