The Supreme Courts decision on triggering Article 50: What does it mean?

This morning the Supreme Court released its judgment in the case of R (on the application of Miller
and Dos Santos) v Secretary of State for Exiting the European Union and associated references. This
was an appeal direct from a High Court ruling that the government was not able to trigger Article 50 of
the Treaty on European Union the Article governing a nations exit from the Union but that this
would have to be done by a vote in Parliament.
Pitmans Partner, Will Richmond-Coggan, provides a convenient explanation of the impact of this
mornings ruling.
Q. What decision has the Supreme Court made?
A. In summary, the Courts ruling was that the decision to trigger Article 50 could not be made without
an act of Parliament. The full Supreme Courts decision runs to 97 pages and contains a good deal
more detail than that, including separate rulings by 4 of the 11 Supreme Court judges who heard the
appeal. The senior judge Lord Neuberger gave the decision of the majority. Three judges dissented
from the Courts decision that Brexit could not be triggered without a vote in Parliament and each
gave shorter judgments explaining their disagreement with the majority. In addition the Court
concluded (unanimously) that the devolved governments in Wales, Ireland and Scotland do not have
an effective power of veto over the decision made at Westminster.
Q. Why is this important?
A. The UKs unwritten constitution is based on the principle of the separation of powers. There are
three elements to this the Crown (which is also called the Executive, and these days is represented
for most purposes by the Government of the day); Parliament (the Legislative or law-making body);
and the Courts. Constitutional law governs how these three arms of the state interact with one
another, and which aspects of the countrys activity are the responsibility of each. The Supreme
Courts decision reflects the view of the claimants in the case that any decision which impacts on the
rights of UK citizens needs to be taken by those citizens elected representatives, i.e. Parliament.
Q. So what are the practical implications of this?
A. Although the Supreme Court has upheld the High Courts decision that Article 50 can only be
triggered by a vote in Parliament, the decision that the devolved nations do not have any sort of veto
means that Theresa Mays timetable to start the Brexit process by the end of March is still on course.
The government has had plenty of time to prepare for the possibility of requiring a Parliamentary vote
on Brexit, and although some time will be needed for their lawyers to review the detailed implications
of the Supreme Courts decision, there is speculation that we could see a draft Bill issued within days.
The re-assertion of Parliaments primacy in relation to matters concerning the rights of UK citizens will
undoubtedly also have broader implications for the circumstances in which the government may seek
to exercise the Crown prerogative in future. No doubt constitutional lawyers will be carefully
scrutinising the detail of the majority decision in this case for some time to come, and it will be a
source of precedent for future challenges to attempts by the government to take decisions with a
national impact, without submitting the question to the legislature.
Q. Will there be a further appeal?
A. Highly unlikely. Quite apart from the irony of submitting questions pertaining to Brexit to the
European Court of Justice, the government will not wish to introduce the scope for further delay to
their Brexit timetable.
Q. Is parliament likely to vote against triggering Article 50?
A. In the House of Commons, the Conservative majority and the likelihood of support from at least
some Labour MPs makes it all but certain that any legislation will pass. In the House of Lords, the
outcome is less certain, but on balance most commentators seem to expect that they will respect the
will of the people reflected in the referendum decision, and allow the legislation through, albeit
possibly with attempts to add in additional clauses to either increase parliamentary scrutiny of the
Brexit process thereafter or to further some other political objective.

Q. What does this mean for business?

A. Unfortunately, the short term answer is that despite the clarity that this judgment gives to the
particular question of process that was in issue, there is going to be a continuing period of uncertainty.
While there have been some helpful indications of the governments intentions as regards importing
the existing European legislation into domestic law, there is already future legislation on the horizon
where it is more uncertain to what extent it will govern UK businesses. In addition, although the Miller
case has been by far the most high profile, it is far from the only legal challenge to the Brexit process.
This mornings decision will no doubt have an impact on all of that, and we can expect a good deal
more of the same before the process is completed watch this space!

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