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The Supreme Court Decides: Article 50 – Government Loses Challenge Majority of 8-3 rules against the Government

Summary

The summary of the Judgment has just been provided by Lord Neuberger. The Justices have ruled that 8-3 the Government cannot rely upon the prerogative power to given notice under Article 50 of the Treaty on European Union . 

In essence, the majority of the Supreme Court held:

(1)  Article 50 provides that notice must be given.

(2)  The issue is nothing to do with whether Britain should leave the EU or not or the timing of that.

(3)  The issue is whether the Government can trigger the procedure under Article 50 to leave without the prior authority of Parliament.

(4)  There is also the issue relating to the devolved legislatures of Scotland, Wales and Northern Ireland.

(5)  The Government cannot exercise prerogative powers if to do so changes UK laws unless this is authorised by Parliament.

(6)  The Claimants’ argue that the UK law will be changed so Parliament’s authority is required.

(7)  The Government relies on section 2 of the European Communities Act 1972 Act and contends that caters for exercise of Government of the power in this way.

(9) The majority supported the Claimant’s arguments. Section 2 provides that whenever EU institutions make law it is an independent source of UK law until parliament decides otherwise. As a result of leaving the EU, rights enjoyed under EU law will be lost.

(10)The Government’s section 2 argument was rejected as withdrawing will bring about a fundamental change in the current position as it will curt off the source of EU law.

(11) So, although the Referendum result was of great political significance but the Act of Parliament authorising the referendum did not deal with the process thereafter.

(12) The dissenting Justices consider that Parliament had not imposed any limitation on the Government’s prerogative power.

(13) With regard to the devolved legislatures, the Government as not compelled to consult with these. Relations with the EU are a matter for the UK Government and not the devolved powers.

What Next?

We will review the Judgment in detail and post a considered analysis of it and the possible implications. However, the Government will now have to lay legislation before Parliament at this stage. Quite how this could impact on the Government’s timetable remains to be seen. The Government is still saying that it still intends to trigger Article 50 by the end of March 2017.

The flavour of things to come may however be seen from the announcement just now from the SNP that  it will publish “50 serious and substantive” amendments to the Bill.