Supreme Court Brexit Ruling: What Happens Next?

By Kavaljit Singh | Commentary | January 26, 2017

In a landmark judgement delivered on January 24, the UK’s Supreme Court ruled that the government must obtain the approval of parliament before triggering Article 50 of the Lisbon Treaty – the legal process to leave the European Union. By upholding the 2016 High Court verdict, the judges of Supreme Court ruled by a margin of 8-3 that the UK government cannot use the so-called royal prerogative powers to leave the EU without the prior authorization of parliament.

Prime Minister Theresa May had insisted that her government has the authority to enter into and withdraw from treaties under royal prerogative powers and therefore it can trigger Article 50 without parliamentary approval.

The case against the government was filed by investment manager Gina Miller and hairdresser Deir Tozetti Dos Santos.

While accepting the claimant’s argument that leaving the EU would change UK law and the legal rights enjoyed by its residents, Lord Neuberger, the President of the Supreme Court, stated: “As a general rule, the Government has a prerogative power to withdraw from international treaties as it sees fit. However, the Government cannot exercise any power if it would thereby change UK laws, unless it is authorized to do so by Parliament…The referendum is of great political significance, but the Act of Parliament which established it did not say what should happen as a result. So any change in the law to give effect to the referendum must be made in the only way permitted by the UK constitution, namely by an Act of Parliament. To proceed otherwise would be a breach of settled constitutional principles stretching back many centuries.”

The Brexit Bill

As the government remains committed to invoke Article 50 by the end of March 2017, it has introduced a short bill on January 26 to trigger Article 50. The House of Commons have been given just five days to discuss the bill thereby restricting the scope for bringing amendments in it.

Titled European Union (Notification of Withdrawal) Bill, it consists of 137 words and states that its objective is to “confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.” Once it is passed, the government could invoke Article 50.

The bill will get approval from the Parliament as major parties have backed the June referendum. However, opposition parties will seek substantial amendments in the Bill to highlight their concerns. For instance, Jeremy Corbyn, leader of Labour party, has already announced his intention to seek amendments in Article 50 Bill to “prevent the Conservatives using Brexit to turn Britain into a bargain basement tax haven off the coast of Europe.” “Labour will seek to build in the principles of full, tariff-free access to the single market and maintenance of workers’ rights and social and environmental protections. Labour is demanding a plan from the government to ensure it is accountable to parliament throughout the negotiations and a meaningful vote to ensure the final deal is given parliamentary approval,” he further added.

Similarly, the Scottish National Party has vowed to put forward 50 amendments to the bill. While the bill will be hotly debated in the coming days, the government is confident that it can meet the deadline of triggering Article 50 by the end of March.

Adding Some Clarity 

Even though the Supreme Court’s judgement is a major legal blow to May government but it has added some certainty to the Brexit process. For instance, it is now certain that the UK will leave the EU. Only the terms and timetable of Brexit remain unclear.

More importantly, the judgement has finally settled the issue whether the consent of the devolved legislatures should be taken before the UK government is authorized to trigger Article 50. The judges noted that the consent from the devolved legislatures is not required as “relations with the EU and other foreign affairs matters are reserved to UK government and parliament, not to the devolved institutions.” Hence, the devolved administrations will not have a veto on the UK’s decision to exit the EU.  This will give May government more room for manoeuvre during Brexit negotiations as the Scottish government is opposed to Brexit.

After demands put forward by Labour party, the government has agreed to bring out a white paper which will outline its thinking and approach towards Brexit. The government will release a white paper after the passage of Brexit bill.

All eyes will be on the Brexit bill and the white paper. Needless to say, the path towards “a smooth and orderly Brexit” remains a bumpy one.

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