Parliamentary authorisation is required to trigger Article 50 - UK Government loses its appeal at the Supreme Court

January 2017

“Be you ever so high, the law is above you” Lord Denning 

The UK Supreme Court, sitting for the first time with all 11 Supreme Court Justices, has rejected the UK Government’s appeal, finding by a majority of 8 to 3, that the Government does not have the power to invoke Article 50 triggering the UK’s exit from the EU without the authorisation of Parliament. (See summary and full text of Judgment.) 

Delivering the Judgment, Lord Neuberger, stressed that the Judgment was purely on a point of law.  The Judgment did not in any way seek to overturn the UK public’s decision to leave the EU in June 2016 and had nothing to do with the timing or terms of the UK’s withdrawal from the EU. 

Triggering of Article 50

The main issue before the Court was whether the UK Government could use its prerogative powers in order to trigger Article 50 of the Treaty on the European Union to give notice of the UK’s intention to withdraw from the EU.  Under the Treaty, a member state must signal its intention to withdraw in accordance with its own constitutional requirements.  The European Communities Act 1972 (the “ECA”) had the effect that EU law had become an independent and overriding source of domestic law.  In the Supreme Court’s Judgment, there was a vital difference between changes in domestic law effected pursuant to the ECA and the fundamental changes in the UK’s domestic laws that would result from withdrawing from the EU.  It was common ground that UK domestic law would change as a result of the UK exit from the EU and that certain rights enjoyed by UK residents would be changed.  Serving a notice to withdraw from the EU was irrevocable and would inevitably initiate those fundamental changes in the UK’s constitutional arrangements by cutting off the source of EU law.  This, together with the removal of some existing domestic rights of UK residents, meant that it was impermissible for the Government to withdraw from the EU without prior Parliamentary authorisation.  Lord Neuberger noted that to proceed otherwise would be a breach of settled constitutional principles stretching back many centuries.

The role of the devolved legislatures

A further issue under consideration was whether formal notice of the UK’s withdrawal from the EU Treaties could be given without consultation with the devolved legislatures (Scotland, Wales and Northern Ireland).  In a unanimous Judgment, the Supreme Court has found that such consultation was not required and that the devolved legislatures did not have a veto on the UK’s decision to withdraw from the EU.  While the devolution Acts were passed by Parliament on the assumption that the UK would be a member of the EU, they did not require the UK to remain a member.  The UK’s relationship with the EU and matters of foreign affairs remain reserved to the UK Government and the Parliament in Westminster.     

What next?

David Davis, the Secretary of State for Exiting the EU announced that a “straightforward” Bill would be put before Parliament in days and would work with members of both Houses to ensure that the Government would meet the timetable of triggering Article 50 by the end of March 2017.  Mr Davis stated that the Supreme Court’s Judgment did not change the fact that the UK would be leaving the EU.  The Article 50 Bill would be separate from the “great repeal” Bill already announced by the Prime Minister and would simply give the Government the power to invoke Article 50.  Mr Davis said he hoped that MPs would not use the Bill as a vehicle to thwart the will of the UK people or delay the triggering of Article 50.  Mr Davis also stated that the Supreme Court’s Judgment did not diminish the Government’s commitment to work with the devolved legislatures.     

It is not clear how MPs will vote on such an important Bill nor whether the House of Lords will seek amendments to that Bill.  How MPs vote on the Bill is now of paramount importance to the triggering of Article 50.  While many accept that Article 50 should be triggered in accordance with the Referendum result, they are divided as to how negotiations should proceed, particularly on the issue of membership of the European single market.  Jeremy Corbyn has indicated that Labour will not seek to frustrate the Article 50 process but to amend the Bill.      

However, the Scottish National Party has reiterated its opposition to the triggering of Article 50 and stated that it will seek to amend the Bill.  Despite the Supreme Court’s decision with respect to the devolved legislatures, the SNP has said that the Government is politically obliged to consult with the devolved legislatures.  Nicola Sturgeon, Scotland’s First Minister, stated that if Scotland was “not going to be listened to” then it might be “time to take Scotland’s future in its own hands” raising the possibility of a second referendum on Scottish Independence. 

The nature of the UK’s relationship with the EU and in particular access to the European single market, may impact on pan-EU intellectual property rights such as trade marks and designs and will also have a bearing on the UK’s participation of the Unified Patent Court.  It is likely that the debates and amendments to the Article 50 Bill over the coming weeks will give us some insight into how the UK Parliament believes the Government should approach its negotiations on the UK’s future relationship with the EU.

This update was prepared by HGF Partner Rachel Fetches based in our London Office. If you would like further information please contact Rachel or visit our Contact page for your nearest HGF office.