Supreme Court ruling on Brexit

The Supreme Court has ruled that Parliament must authorise the UK’s withdrawal from the European Union.  PILS provided financial support to the applicants in Agnew and others to enable the case to be brought to the High Court and to the Supreme Court.

Two judicial review challenges to Brexit were heard at the High Court in Belfast.   In light of the overlapping proceedings in England and Wales, the Court stayed consideration of the means by which Article 50 would be triggered and the question of displacement of prerogative executive power by statute.  Mr Justice Maguire limited his consideration to Northern Ireland’s constitutional provisions.  While the judge rejected the devolution arguments, he granted leave to appeal the matter.

The High Court of England and Wales, in the Gina Miller and Others case, considered the issue of whether Parliament ought to vote on the terms of the UK’s withdrawal from the EU and found that an Act of Parliament was necessary.  The government appealed.  The Supreme Court adjudicated on this primary question and also addressed the constitutional issues concerning the devolved legislatures, presented in the proceedings brought by the applicants in the Agnew and McCord case.

On the 24th January 2017, by a majority of eight to three, the Supreme Court dismissed the Secretary of State’s appeal.  The majority held that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union.  Lord Neuberger stated that,

‘…unless primary legislation permits it, the Royal Prerogative does not enable ministers to change statute or common law…Further, ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation.’

However, on the devolution issues, the Court unanimously rejected arguments that the Scottish Parliament, Welsh Assembly and Northern Irish Assembly should vote on whether Article 50 could be triggered.  The Court found that the Northern Ireland Act 1998 did not make provision for this and nor did the devolution arrangements for the other devolved legislatures.  The Sewel Convention establishes that Westminster should not normally legislate with regard to devolved matters without the consent of the devolved institution so impacted.  However, this convention did not permit the courts to make a ruling that the devolved governments be consulted.  The Court held that,

While the UK government and the devolved executives have agreed the mechanisms for implementing the convention…the convention operates as a political restriction on the activity of the UK Parliament…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.’