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BREXIT: Government cannot trigger 'Article 50' without agreement of parliament, Supreme Court rules


The UK government cannot trigger Article 50 of the Treaty on European Union (TEU) to begin the UK's withdrawal from the trading bloc without the agreement of both Houses of Parliament, the UK's highest court has ruled.

By a majority of eight judges to three, the Supreme Court ruled that only parliament could take action to override the 1972 European Communities Act (ECA), which gave effect to the UK's membership of the EU. That legislation was "inconsistent with the future exercise by ministers of any prerogative power to withdraw" from the EU treaties, the judges said.

The government need not, however, consult the devolved administrations of Scotland, Northern Ireland and Wales before triggering Article 50, the court ruled. The judges ruled unanimously that nothing in the devolution arrangements triggered such an obligation while the 'Sewell Convention' on devolved matters did not give rise to a legally enforceable "veto" on the decision of the UK as a whole to withdraw from the EU.

EU law expert Guy Lougher of Pinsent Masons, the law firm behind Out-Law.com, said that the judgment could delay the prime minister's previous commitment to begin the Brexit process by the end of March.

"While there will be celebrations in certain quarters, this ruling will prompt a period of debate and perhaps could even delay the date for invoking Article 50," he said.

"As of today, it's unclear precisely where we go from here but now that approval is needed in both the Commons and the Lords a major constitutional debate will be triggered. This casts doubt over the reality of the March timetable being met if the debate 'ping pongs' between both Houses," he said.

"In the meantime, businesses should prepare for the range of potential risks and opportunities that Brexit could bring, whilst avoiding premature decisions should Article 50 be invoked some time down the line," he said.

Article 50 of the TEU sets out the formal legal process by which a member state can leave the trading bloc. Once 'triggered', a member state has two years in which to conclude negotiations and exit the EU. The wording states that a member state must do so "in accordance with its own constitutional requirements". The UK government had argued that this permitted the use of its executive, or 'royal prerogative', powers, and bypassed the need for a parliamentary vote.

Giving the judgment of the majority, Supreme Court president Lord Neuberger disagreed.

"[The ECA] authorises a dynamic process by which … EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes," he said. "Of course, consistently with the principle of parliamentary sovereignty, this unprecedented state of affairs will only last so long as parliament wishes: [the ECA] can be repealed like any other statute."

"By [the ECA], parliament endorsed and gave effect to the United Kingdom's membership of what is now the European Union under the EU treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties. In short, the fact that EU law will no longer be part of UK domestic law if the United Kingdom withdraws from the EU treaties does not mean that parliament contemplated or intended that ministers could cause the United Kingdom to withdraw from the EU Treaties without prior parliamentary approval," he said.

It was also relevant here that UK domestic law would change as a result of the UK ceasing to be party to the EU treaties, and that rights granted to UK residents by virtue of EU law would be affected, he said.

The court dismissed arguments raised by the attorney general for Northern Ireland, advocate general for Scotland and counsel general of Wales on their right to intervene in the Brexit process. Although the devolution legislation "impos[ed] EU constraints and empower[ed] the devolution institutions to observe and implement EU law", it "did not go further and require the United Kingdom to remain a member of the European Union".

"Within the United Kingdom, relations with the European Union, like other matters of foreign affairs, are reserved ... Accordingly, the devolved legislatures do not have a parallel legislative competence in relation to withdrawal from the European Union," Lord Neuberger said in his judgment.

At the same time the Sewel Convention, which says that the UK parliament will not normally legislate on devolved matters without the agreement of the devolved legislatures, was a political and not a legal agreement and the Court did not have the right to rule on its operation.

"In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution," Lord Neuberger said. "The Sewel Convention has an important role in facilitating harmonious relationships between the UK parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law."

Lord Neuberger added that the court's decision was solely a legal one, and that it did not undermine the results of the 2016 referendum on EU membership.

"The referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation," he said.

"But that in no way means that it is devoid of effect. It means that, unless and until acted on by parliament, its force is political rather than legal. It has already shown itself to be of great political significance," he said.

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