Marko Scepanovic

Naked Politics Blogger 

The Supreme Court today upheld the ruling that Article 50 must be triggered by a vote in Parliament. Before I get into the nitty gritty details of the judgment and its implications, as someone who is very much involved in the law I want to get one thing straight. This judgment, and litigation as a whole, has no impact on the referendum result. Yes, I’m aiming this at the self appointed legal experts and keyboard warriors who seem keen on whipping up fury and using corrosive language. Even the judges said so at paragraph 3 of the judgment (I recommend reading the summary before even speaking on the subject).

There are quite a few different angles to this case, as it is a major constitutional decision, not just for the Brexit process, but also for all future scenarios which involve the government exercising its powers under the Royal Prerogative – think of this as powers most governments inherently have; the declaration of war and use of military both being two well known ones, we don’t need a vote in Parliament to do either. I’ll give an oversight of the decision and how the judges came to it, and then focus on the wider consequences to Brexit and the Royal Prerogative.

What did the Supreme Court decide?

As you’ve probably heard, the Supreme Court confirmed that the lower court’s decision about Parliaments role. 8 of the 11 judges agreed so and those who disagreed wrote their opinions as to why also (found towards the end of the judgment). A second issue which was dealt with by the judges was whether Northern Ireland, Scotland and Wales had to pass a vote in their own assemblies also. Remember, the UK is technically four countries in one Union and some argued that they too should have a vote. In the end, all 11 judges disagreed, and so only the Westminster Parliament needs to have the vote.

How did the judges come to their decision for a vote in Parliament?

The UK doesn’t technically have a written constitution. That’s basically a document which specifies how the government, Parliament and courts work – imagine the American Constitution and all its Amendments. We instead operate through centuries old traditions, what judges have decided over the years and what legal scholars such as Blackstone and Dicey wrote in the 18th and 19th Centuries.

The debate today focused on two key bits of our unwritten constitution: how far the government can use the Royal Prerogative in getting rid of international treaties, against the need for Parliament to consent to any such changes.

First up was a detailed examination of how exactly the UK initially joined the EU (the EEC at the time) in 1972. They focused on the fact that our entry into the EU was confirmed by an act of Parliament, and many of the EU’s laws continue to be voted into UK law by Parliament. As a result, EU law is seen to be UK law.

Following on, the judges went through the long history of our unwritten constitution to unpick the Royal Prerogative and came across a nice gem of a rule (unless you are the government of course). They noted that if a consequence of using the Royal Prerogative is that rights of UK nationals will diminish, then you need to have the consent of Parliament. But how exactly do we lose rights? Well, as EU laws are adopted as UK law, we the people can enforce them in our courts. We also have the right to move abroad and work and rights to stand as a Member of the European Parliament. Inevitably, leaving the EU means saying goodbye to those rights. Hence that’s why Parliament must consent.

But doesn’t the referendum result bypass all this legislative process?

The judges answered this question briefly as the government brought it up as a point of argument in their favour. The judges took the view that previous referendums such as the 2011 Alternative Vote Referendum Act have a clause which specifically gave the government permission to bypass Parliament. This clause was not present in the 2015 Referendum Act. So yes, you were basically lied to when told that the result was binding. It deliberately wasn’t made binding by the Conservatives under Cameron, which means the only way the 2016 Referendum result can become law is by a vote in Parliament.

What was decided about devolved assemblies having a say?

The Sewel Convention in the UK was set up after the Scotland Devolution Act in 1998 and it sets out the relationship between the UK Parliament and the devolved institutions. However, the judges decided that this was a political not a legal convention and didn’t really want to get caught up in the politics of it all so they decided that as there is no clear message from the UK Parliament that foreign relations has ever been made a responsibility of Scotland, Wales and Northern Ireland independently. It remains a sole responsibility of the UK Parliament. This means there is no chance Nicola Sturgeon can use her majority in Scotland to block Brexit.

What did the dissenting voices say?

Interestingly enough, none of the judges sought to criticise the decision over the devolved Parliaments. It seems that that the UK Parliament has made clear that devolution does not extent to matters of foreign relations. On the matter of Parliamentary consent, they took a more small ‘c’ conservative approach in that the government should be allowed to make and get rid of all international treaties as it wishes and those actions would be held to account by Parliament through debates and scrutiny committees.

What does it mean for the UK Constitution?

  • Brexit Process

This case is significant for legal geeks like me, but not really for the Brexit process. Theresa May will bring a Bill to the House of Commons and it will pass. Some Liberal Democrat and Labour MPs may vote against this, but they are in a minority.

Interestingly though, the judges did not mention how definitive the Bill should be. This means the government may, and is likely to, introduce a very short Bill. The Labour party wish to introduce amendments to protect what they see as key interests, however any amendments must be closely linked to the initial clauses and it will fall to the House of Commons Speaker John Bercow to determine which amendments can be voted on and debated.

Once the House of Commons passes the Bill, it falls to the House of Lords. This is where the key fight may be. The Conservatives are outnumbered by Labour and the Liberal Democrats, who may seek amendments also. I highly doubt the Lords will ultimately reject the Bill as it would inevitably lead to the dissolution of the Lords by the government in another Bill, and no turkey will vote for Christmas. Therefore, except a few skirmishes over amendments, expect the Bill to quickly pass and Article 50 to be formally triggered.

  • Royal Prerogative

The legal implications mean that the Royal Prerogative has once again been narrowed down and Parliament’s role increasing, this should most definitely be seen as a positive step for anyone who believes in Parliamentary democracy.

Future treaty matters

Another interesting development from this case is the fact if the UK in the future wishes to cancel its membership from another international organisation, but that organisation gives UK nationals rights in UK law, it can only be cancelled by a vote in Parliament. Theresa May loathes the European Convention of Human Rights and its accompanying court. The Conservatives have promised in their next manifesto to withdraw from the institution. Fortunately, any such removal must go through Parliament rather than directly by the Royal Prerogative. If the Conservatives win the next election, watch this space!

Round up

To a lot of people, this case was so hyped up by the media that when the result finally came in, it felt a bit anticlimactic, as if there was no controversy. Well, that’s because in all honesty, most undergraduate law students could have given a very similar answer to the Supreme Court. This process highlights exactly why we need better citizenship classes for the general public and some MP’s (the Tory right in particular) on our unwritten constitution. The decision ultimately changes very little for the Brexit process and had Theresa May accepted the initial decisions back late last year, she could have passed the Bill at a even quicker rate, with an opposition much less prepared to scrutinise and form alliances in both Houses than it is now.​



*A summary version of the decision, including the full decision can be found here.

Tagged in:

Last Update: April 28, 2018