Brexit in the making – The Supreme Court judgment

Photograph: 'The Supreme Court' / Gary Knight

On the 24th of January 2017, the Supreme Court has delivered its judgment on who has the power to trigger Article 50, the process of leaving the European Union.

Quick recap

On 23rd June 2016, the United Kingdom voted to leave the European Union. David Cameron resigned as a Prime Minister, and on the 13th of July, Theresa May took his role.

The process of leaving the European Union begins when the UK triggers Article 50 of the Treaty on the European Union, an article which sets the process by which countries can leave. Albeit, it does not say much how the country must do it, only that the ‘Member State may decide to withdraw from the union in accordance with its own constitutional requirements’ and that the intention must be notified to the European Council, after which the Union shall negotiate and conclude an agreement with the leaving state. The EU Treaties would cease to apply on the entry into force of the withdrawal agreement, or if no new agreements are concluded, after two years. In short, the UK has two years to negotiate a deal with the European Union.

Since Artice 50 falls short on the substantive conditions, and only speaks about the procedural requirements, the lack of legal certainty mounted as to who should trigger Article 50.

The Government said it could invoke Article 50 without the support of MPs referring to the ‘Crown prerogative’ which describes powers held by the Monarch or by the Government ministers that may be used without the consent of the Commons or Lords. Campaigners disagreed and the case went to court.

On 3rd of November 2016, the High Court ruled that the government does not have the power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the EU on the basis that the UK constitutional law does not allow that. It follows that the Parliament must pass a law in order to enact Article 50 and leave the EU.

The Government appealed to the Supreme Court and the hearing took place from the 5-8 of December.

Yesterday, on the 24th January, the Supreme Court gave its judgment and upheld the High Court’s ruling by a majority of 8 to 3.

Therefore it does have to be an Act of Parliament authorising ministers to give notice of the decision to withdraw from the EU, a Bill which will give the MPs the opportunity to amend that Bill, to force the government to specify what it wants out of Article 50 negotiations.

However, this is not the end of the legal uncertainty in leaving the EU. The Irish court will hear a case whether Article 50 is revocable or not. Another case pending is whether or not the fact that Britain is pulling out of European Union must automatically mean that it also leaves a single market.

Since the UK is the first member wanting to leave the EU there is a lot of unanswered question as to how it should be done. This is not to say that the Brexit will not happen. It will, but it will also take the time to answer all of the questions. See it as an opportunity to be the first country to pave the way for other Members to leave the EU if they wish so, perhaps some of the legal uncertainty will be resolved by then.

Now, we are set to see how the Parliament will handle it, David Davis who is a secretary of state for exiting the EU has promised to publish a ‘straightforward’ Brexit Bill within days. While it is unlikely that the Parliament will vote against Article 50, there are some MPs, such as Liberal Democrats, the 56 Scottish National Party MPs and a couple of Tories who have already suggested voting it down.

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Angelika Majchrowska 5 Articles
Angelika is a contributing writer and writes about politics, law and current affairs. She has a Master of Law in Corporate and Commercial Law, and a Master in European Public Law and Governance. She is particularly interested in privacy, data protection and cyberlaw. She is a paralegal at Sterling Lawyers and deals with immigration and employment law.

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