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05th December 2016

Brexit, Article 50, the Supreme Court and all that

Today (05.12.16) marks the first day of the UK Supreme Court’s hearing of the most significant constitutional law case to be brought before the UK Courts in a generation – arguably, in several general generations.

It is certainly the biggest case the Supreme Court has had to handle. The Court only came into existence in 2009, when the ‘court of last resort’ jurisdiction was transferred from the Judicial Committee of the upper house of the UK Parliament to a newly formed Court.

Last month, a panel of senior High Court Judges held that the Government could not give the requisite notice for the UK to withdraw from the European Union (Article 50 notification) without the authority of Parliament. The Government has appealed. Reflecting the importance and urgency of the case, the appeal has ‘leapfrogged’ the Court of Appeal to the Supreme Court. As a further indication of its significance, this will be the first occasion when the full Panel of 11 Supreme Court judges will sit to hear a case. The hearing is expected to last four days and is being broadcast live (online and on television). It is anticipated that the Court will give its Judgment in January.

Why is the case so significant?

Whilst the issue before the Court is obviously of enormous interest in the political context (arising as it does from the seismic result of the Brexit Referendum in June this year), its legal significance lies not in whether a Brexit will go ahead (the prospect that the majority vote in favour of an exit will be not be honoured is very remote), but in what the Court will say about (a) the balance of power between the Executive (UK Government) and the Legislature (Parliament); and (b) the effect of the decision of Parliament in 1972 (by passing The European Communities Act 1972) that EU law would, from that point, be English law. At a high level, the case is about the character of UK democracy; whereas at the ground floor, it is about the nature and effect of the 1972 Act.

On the back of the mandate of the Brexit Referendum result, the Government has maintained that the decision to trigger withdrawal from the European Union is one that it can now exercise alone. It says it can do this because on the international plane it retains the authority to do so by virtue of its entitlement to exercise ‘the Crown’s prerogative power’ to make and unmake Treaties. In its strong decision last month, the High Court rejected this argument, holding that the Government could not exercise that power here because, amongst things (a) the Referendum was ‘advisory’ only (that is what Parliament had decided it would be) and therefore on its own, the vote did not authorise an Article 50 notification; and (b) the 1972 Act which implemented EU law in the UK gave people rights and therefore the Government could not act in the international plane in isolation from Parliament in a way that would deprive people of those rights.

At the heart of the Government’s appeal to the Supreme Court is the case it made to the Court below; that the power it has to make and withdraw from Treaties (specifically here, the Lisbon Treaty) are not constrained by the 1972 Act. We can expect the Supreme Court to look carefully at both the Article 50 process and the 1972 Act and it still remains a possibility that the Court will make a ‘reference’ to the Court of Justice of the European Union (CJEU) on the former.

Whilst parts of the media have presented the case as one where the Judges have been entering an arena in which they should not be trespassing, the reality is that the Judges are simply being asked to determine points of law. The UK Judiciary are globally respected for their independence and their quality. They guard their independence jealously. We can therefore expect the Supreme Court Panel to keep firmly to the tramlines of their jurisdiction. Their decision is keenly awaited.

For more information please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.

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