Information
Equipo Nizkor
        Bookshop | Donate
Derechos | Equipo Nizkor       

24Jan17

Supreme court rules parliament must have vote to trigger article 50

The government has lost its fast-tracked appeal to the supreme court, forcing ministers to introduce emergency legislation into parliament to authorise the UK's departure from the EU.

In a judgment that sets a far-reaching constitutional precedent and upholds parliamentary sovereignty, the court ruled by a majority of eight justices to three that MPs and peers must give their consent before the government can trigger article 50 and formally initiate Brexit.

The decision sets clear limits on the extent of the government's executive powers. Rights embedded in the law by the 1972 European Communities Act, which took the UK into what was then the European Community, cannot be removed by the government's prerogative powers, a majority of the justices declared.

The eagerly awaited ruling by the largest panel of judges ever assembled in Britain's highest court routes the protracted Brexit process through parliament, handing over to MPs and peers the authority to sanction the UK's withdrawal.

The supreme court ruled that there was no need for the government to wait for consent from the devolved assemblies in Scotland, Northern Ireland and Wales.

Although the ruling represents a blow to Theresa May's intended timetable on Brexit, a Downing Street spokesman said the ruling had not changed the verdict of the British people.

"It's important to remember that parliament backed the referendum by a margin of six to one and has already indicated its support for getting on with the process of exit to the timetable we have set out," a spokesman said. "We respect the supreme court's decision, and will set out our next steps to parliament shortly."

The government now has a tight deadline to pass even a short bill through parliament, but it is still possible to meet its article 50 deadline of the end of March. In May's favour, there is not a large appetite in either the Commons or the Lords to actively block the process.

The SNP and Lib Dems are likely to vote against the bill if their amendments are not passed, and some Labour rebels will join them. But Labour has no desire to appear to be trying to prevent the referendum result being honoured.

The Labour leader, Jeremy Corbyn, said his party would not "frustrate the process for invoking article 50" but would seek to amend the government's bill.

Corbyn said: "Labour will seek to amend the article 50 bill to prevent the Conservatives using Brexit to turn Britain into a bargain basement tax haven off the coast of Europe.

"Labour will seek to build in the principles of full, tariff-free access to the single market and maintenance of workers' rights and social and environmental protections.

"Labour is demanding a plan from the government to ensure it is accountable to parliament throughout the negotiations and a meaningful vote to ensure the final deal is given parliamentary approval."

The leader of the Liberal Democrats, Tim Farron, confirmed his party would vote against article 50 unless people were given another vote on the final deal.

Scotland's first minister Nicola Sturgeon, said the ruling showed the promises made to the Scottish government on devolution were "not worth the paper they were written on". She said the Scottish parliament would still have an opportunity to vote on whether it consented to the triggering of article 50.

The attorney general, Jeremy Wright, said the government was "disappointed" by the supreme court ruling but would comply with it.

He said enacting the decision would now be a political and not legal matter and the Brexit secretary, David Davis, would be making a statement to the Commons later on Tuesday.

Gina Miller, the investment fund manager who was one of the lead claimants in the challenge, welcomed the ruling, saying: "No prime minister, no government can expect to be unanswerable or unchallenged. Parliament alone is sovereign."

Outside the court, she said MPs would now have the chance to help the government select the best course in Brexit talks. She also spoke of how this "divisive issue of a generation" had led to her and her legal team facing "extraordinary and unwarranted criticism".

The justice secretary, Liz Truss, who faced criticism for not defending the appeal court justices denounced by sections of the media as "enemies of the people" after they ruled against the government, said: "Our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled the world over, and our supreme court justices are people of integrity and impartiality.

"While we may not always agree with judgments, it is a fundamental part of any thriving democracy that legal process is followed. The government has been clear that it will respect the decision of the court."

The president of the supreme court, Lord Neuberger of Abbotsbury, delivered a summary of the decision, which has far-reaching constitutional implications.

Reading the summary, Neuberger said: "By a majority of eight to three, the supreme court rules that the government cannot trigger article 50 without an act of parliament authorising it to do so.

"Section 2 of the 1972 [European Communities] Act provides that, whenever EU institutions make new laws, those new laws become part of UK law. The 1972 act therefore makes EU law an independent source of UK law, until parliament decides otherwise.

"Therefore, when the UK withdraws from the EU treaties, a source of UK law will be cut off. Further, certain rights enjoyed by UK citizens will be changed. Therefore, the government cannot trigger article 50 without parliament authorising that course."

Neuberger said: "Any change in the law to give effect to the referendum must be made in the only way permitted by the UK constitution, namely by an act of parliament. To proceed otherwise would be a breach of settled constitutional principles stretching back many centuries."

The eight to three margin of defeat suffered by the government was bigger than ministers had hoped for. They had already conceded in advance that they would probably lose.

The three dissenting justices who found for the government were Lords Reed, Carnwath and Hughes. Their judgments say that the European Communities Act did not restrict the government's use of its prerogative powers and that ministers could withdraw without reference to parliament.

The devolved assemblies in Edinburgh, Belfast and Cardiff had argued for a say on the basis of the Sewel convention, which provides for them to be consulted on matters that are "normally" devolved, but they did not win any formal right to participate in the Brexit process.

Neuberger said: "On the devolution issues, the court unanimously rules that UK ministers are not legally compelled to consult the devolved legislatures before triggering article 50. The devolution statutes were enacted on the assumption that the UK would be a member of the EU, but they do not require it. Relations with the EU are a matter for the UK government.

"The Sewel convention plays an important role in the operation of the UK constitution but the policing of its scope and operation is not a matter for the courts."

Paragraph 122 of the 96-page long judgment makes clear that it is up to MPs and peers to decide what form the bill put before parliament should take. The majority judgment states: "What form such legislation should take is entirely a matter for parliament. But, in the light of a point made in oral argument, it is right to add that the fact that parliament may decide to content itself with a very brief statute is nothing to the point. There is no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity.

"A notice under article 50(2) could no doubt be very short indeed, but that would not undermine its momentous significance."

[Source: By Owen Bowcott, Rowena Mason and Anushka Asthana, The Guardian, London, 24Jan17]
Bookshop Donate Radio Nizkor

Economic, Social and Cultural Rights
small logoThis document has been published on 25Jan17 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.