Last week, the Supreme Court heard the Government’s appeal from the High Court’s recent decision that Article 50 cannot be triggered without Parliamentary approval. As set out in our previous post, the appeal raises questions as to the roles of Government and Parliament under the UK constitution. The Supreme Court will also consider the constitutional role of Scotland, Wales and Northern Ireland in relation to the triggering of Article 50.
Following four days of submissions, judgment was reserved and a decision is expected in January.
One point which was not argued before the Supreme Court was whether an Article 50 notice can subsequently be revoked. As noted previously, had such an argument been raised, it is possible that the Supreme Court would have referred the revocability of an Article 50 notice to the CJEU as a question of interpretation of European law. However, it has since been reported that such question may find its way to the CJEU in any event, via a possible challenge in the Irish High Court.
In the meantime, Parliament, by a substantial majority, passed a motion in the following terms:
“That this House recognises that leaving the EU is the defining issue facing the UK; notes the resolution on parliamentary scrutiny of the UK leaving the EU agreed by the House on 12 October 2016; recognises that it is Parliament’s responsibility to properly scrutinise the Government while respecting the decision of the British people to leave the European Union; confirms that there should be no disclosure of material that could be reasonably judged to damage the UK in any negotiations to depart from the European Union after Article 50 has been triggered; and calls on the Prime Minister to commit to publishing the Government’s plan for leaving the EU before Article 50 is invoked, consistently with the principles agreed without division by this House on 12 October; recognises that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further calls on the Government to invoke Article 50 by 31 March 2017.”
The motion had been initiated by the Opposition as an attempt to require the Government to reveal its plan for Brexit. The Government’s response was to agreement but to propose an amendment adding language with regard to invoking Article 50 in accordance with the Government’s existing timetable.
Two points arise from the passing of this resolution.
The first is the Government’s concession that it will publish a ‘plan’ in advance of the Article 50 notice being served. There has been little information as to the level of detail to be included in such plan and no confirmation as to whether it will take the form of a White Paper. Nevertheless, many businesses and those looking for greater certainty as to the form Brexit will take will welcome anything which provides clarification as to the Government’s strategic objectives.
Secondly, while the Opposition were keen to stress that this resolution does not have the force of legislation, supporters of the Government have argued that the size of the majority of MPs supporting the resolution means that, politically, it will be more difficult for MPs to prevent the triggering of Article 50 by the end of March 2017 (to the extent that the Supreme Court confirms that this is required). In other words, unless the Supreme Court holds that any of the devolved administrations should have a role in the process, the passing of this resolution increases the likelihood of Article 50 being triggered by the end of March 2017.
Separately, Michael Barnier, the EU’s chief negotiator in relation to Brexit, suggested last week that negotiations for the UK’s withdrawal from the EU would, from a practical perspective, have to be conducted in less than two years, given the need to allow time for ratification of any deal. Accordingly, if events proceed as outlined above, we could have a fairly clear idea of what Brexit will look like by the autumn of 2018.