Brexit Update: Supreme Court Ruling

Prime Minister does not have the power to notify the EU under article 50

On 24 January the Supreme Court in UK gave its ruling on the constitutional requirements necessary for the Government to commence departure from the European Union.  As the matter was of such significance all eleven judges sat together for the first time.  In brief, they ruled that the Prime Minister does not have the power to notify the EU under article 50 of the EU Treaty of the UK’s intention to leave using her residual prerogative powers to sign international treaties.  It is necessary first for the matter to be considered by Parliament and an Act passed authorising the notification.  This upheld the long established principal of the unwritten UK constitution that Parliament is sovereign.

What happens now?

On 26 January the Government published a very short Parliamentary Bill which, once passed will authorise the notification.  In accordance with usual Parliamentary procedure this will be discussed in both Houses of Parliament (the House of Commons and the House of Lords) and amendments may be tabled.  Both main political parties, Conservatives and Labour, have indicated their intention to pass the Bill in line with the wishes of the majority of the public who voted in the Referendum in June.  So the Government considers its intended timetable to triggering article 50 by the end of March 2017 can still be met.

However, there will be some resistance from politicians who wish to push through amendments to give Parliament more control over the outcome of the subsequent negotiations with the EU on the exit terms.  For example, requiring a guarantee that all workers’ rights provided by the EU Treaty will be retained or that Parliament (or the people in a further referendum) will be given the opportunity to consider the final exit package and accept or reject it.

The Government also announced this week that it will publish a White Paper setting out some of its aims for the negotiations.  These can then be discussed in Parliament.  The timetable for publication is not yet known.

When will the UK leave the EU?

Once article 50 is triggered, there is then a two year period for the exit package to be negotiated and agreed by all 27 remaining EU countries.  If this is not agreed then, under article 50, the UK would leave anyway and only standard WTO trade rules would apply.  So, the UK could be out of the EU by end of March 2019.

Another question vexing interested parties is whether the UK can change its mind once article 50 has been triggered or if the notice is irrevocable.  There are suggestions of a new legal action to be brought in Dublin, Ireland which would seek clarification of article 50 on this point.