Earlier this week, it was rumoured that Parliament had prepared four different draft Bills – each one had, at its core, a sentence giving the Prime Minister the authority to serve notice under Article 50, triggering the formal two-year process by which the UK would leave the EU. Indeed, one of those draft Bills had nothing else except that authority, with the Government believing the fewer words were used, the less chance there would be of pro-European MPs trying to derail the Bill.
And the Supreme Court’s judgment a few moments ago will allow the Government to throw three of those Bills away.
Whilst it has no effect on the Brexit referendum – the British public voted to leave the EU and that hasn’t changed - the Supreme Court essentially upheld the High Court’s earlier ruling that the law of ‘Royal Prerogative’ does not allow the Prime Minister to give notice to withdraw the UK from the EU without having first obtained Parliament’s approval because, in order to leave the EU, the UK needs to repeal the European Communities Act 1972. And Acts of Parliament cannot be repealed except by another Act of Parliament (ie. the approval of MPs).
The High Court’s decision was a textbook example of well-written, logical and coherent legal argument and, regardless of our or your own personal view on Brexit, the absolutely correct decision. The Supreme Court has now ratified that High Court judgment by a majority of 8 judges to 3, but also confirmed that the Prime Minister does not need to formally consult with the Scottish, Welsh and Northern Irish parliaments before triggering Article 50, which will be a relief for the Government.
Which means that MPs will get a vote in Parliament. And that could, in theory at least, provide a right of veto for the ‘Remain’ campaign – without the approval of a majority of MPs, the UK would remain a member of the EU for the foreseeable future. But is that going to be a problem in reality? Whilst Liberal Democrat, Scottish Nationalist, SDLP and a sizeable number of Labour MPs have indicated that they would openly vote against Brexit, despite the result of last June’s referendum, the bookies are still expecting Parliament to comfortably vote in favour of whatever Bill the Government eventually lays before it (even if the Prime Minister does have to make some concessions to MPs and the House of Lords on the text of that Bill before it passes). And we all know that the bookies never get it wrong.
Apart from the Brexit referendum. And the US election. And Leicester City.
So, whilst constitutional lawyers digest and consider the Supreme Court’s decision, the rest of the world awaits publication of the draft Bill later this week, and the subsequent timetable for debating and voting on that Bill. And you can rest assured that the eyes of the European political and legal establishments will be glued to the TV coverage on the day of the vote, awaiting the moment the Speaker brings the House to order and begins his pronouncement of the Ayes to the Right, Noes to the Left…
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.