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Article 50 appeal heads to the Supreme Court – and a new challenge on the horizon

Andrew Sheftel

The hearing of the UK Government’s appeal against the High Court’s recent decision that Article 50 cannot be triggered without Parliamentary approval is due to commence on December 5. It is anticipated that all 11 members of the Supreme Court will hear the appeal and a decision is expected in the New Year. 

Full details of the High Court’s decision are set out in our previous post.

The principal issue in the appeal, namely whether the Government has power to trigger Article 50 under the royal prerogative, is of considerable constitutional significance as to the proper roles of the executive (the Government) and the legislature (Parliament) in the UK. It is also potentially of great practical significance, first as to whether the Government will be able to invoke Article 50 by the end of March 2017 as planned, but also as to whether Parliament will seek to use the fact that its approval is required as a way to hold the Government to account in relation to its negotiating strategy.

The appeal has also thrown up some additional questions for consideration:

  1. If Parliamentary approval is required to trigger Article 50, can this be achieved by a simple motion or is legislation required? The current assumption appears to be that an Act of Parliament will be required but this may be something that is clarified by the Supreme Court. Even if legislation is required, there has been speculation that this could simply be short Bill, with the aim of pushing it through Parliament as quickly as possible on the basis that MPs would be expected to honour the referendum result. One of the questions arising out of this will be whether opponents try to include amendments requiring the Government first to make clear its strategy and aims.
  2. Can an Article 50 notice be withdrawn or revoked? Throughout the hearing before the High Court, the Government was clear that it was proceeding on the basis that once an Article 50 notice had been given, it could not subsequently be withdrawn or revoked. Article 50 is silent on this point. Ironically, were the Government to argue that an Article 50 notice could be withdrawn, it might arguably be better placed to meet one of the claimants’ principal arguments: that triggering Article 50 would inevitably modify rights acquired in domestic law under the European Communities Act 1972 – a key reason why the High Court determined that parliamentary approval is required. In other words, if an Article 50 notice can be revoked, the Government would be able to argue that individual rights would not necessarily be affected simply by the giving of notice. However, the further irony is that if the Government were to raise such an argument, there is every possibility that the Supreme Court would refer the revocability of an Article 50 notice to the CJEU as a question of interpretation of European law, thus further delaying the triggering of Article 50.
  3. What is the role of the devolved nations? It is likely that the Supreme Court appeal will hear submissions regarding Scotland, Wales and Northern Ireland.

    One of the principal issues concerns what is known as the Sewel Convention. Although, parliamentary sovereignty allows the UK Government to repeal or amend legislation, changes to legislation affecting devolved powers are normally subject to the passing of a legislative consent motion by the parliament concerned. In other words, although it has power to do so, the UK Parliament will not normally legislate on devolved matters without the consent of the devolved legislation. Both the Scottish and Welsh governments have been given permission to intervene in the Supreme Court hearing and each will be making submissions.

    With regard to Northern Ireland, shortly before the English High Court’s decision, the High Court in Northern Ireland considered two judicial review applications challenging the UK Government’s position that it was entitled to give notice under Article 50 without the approval of Parliament. The applications were dismissed with the Court holding, amongst other things, that there was nothing in the Northern Ireland Act 1998 or the Good Friday Agreement which prevented the UK Government triggering Article 50 under the prerogative powers and that no legislative consent motion was required. The judgment in that case is here. As the Supreme Court has since received a reference from the Attorney General of Northern Ireland, it is likely that the devolution issues in this claim are also likely to be considered by the Supreme Court.

It has also been reported today that the UK Government may face a separate judicial review challenge in relation to the UK’s EEA membership and whether the UK remains part of the single market. This is likely to include consideration of the question of whether on Brexit, the UK would nevertheless remain part of the EEA unless separate notice were to be given under Article 127 of the Agreement on the European Economic Area. As such, whatever the Supreme Court decides, it may not be the last time questions over Brexit are before the Courts.

The United Kingdom has voted to leave the European Union.

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