Today’s Commentary on Court Judgement for Brexit Vote Appeal

The eleven justices of the Supreme Court heard evidence over four days in December before handing down their judgment today, establishing, by a margin of eight to three, that the UK Parliament must have a vote on whether the government may begin the official Brexit process, triggering Article 50.

The Supreme Court also ruled that the Scottish Parliament, and Welsh and Northern Ireland Assemblies need not contribute to the vote. Further legislation, based on the court ruling, will now be established by the government lawyer, which in itself will have to be favoured by both the House of Commons and House of Lords.

Here are some comments Lawyer Monthly has heard commentary from the below sources, who have provided their insight into the developments.

Lord Chancellor Elizabeth Truss:

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.

Charles Brasted, Partner, Hogan Lovells:

This does not mean the end of legal issues relating to the Brexit process but it does mean that the focus of that process now shifts to Parliament. Ministers have been managing expectations for some time, and they will no doubt be ready to react quickly. The Government will be looking to get a Bill through quickly. The expectation is that it will be able to do that. However, there is a real risk that the Government may have to make concessions on parliamentary involvement in the process along the way.

From a practical perspective, it will be at least as important for the Government that the Court confirmed that it has no legal obligation to consult any of the devolved legislatures in Scotland, Northern Ireland or Wales – something which could have caused material delay, not least given the forthcoming Stormont elections. However, the Court did emphasise that the convention acts as a political constraint that plays an important role in the operation of constitution.

It may surprise some that the question of whether an article 50 notice could be revoked by the UK after the Brexit process has been triggered remains unanswered. The Government expressly resisted this issue being ruled on even though the Divisional Court noted that, if it could be revoked, the claim would be “blown out of the water”. It is a question that could only ultimately be determined by the Court of Justice of the European Union, and other claimants have already come forward seeking to have that question decided.

More broadly, this ruling will be studied closely by constitutional lawyers as it addresses a number of central issues, including the interplay between the Government’s executive powers in international law and legislative sovereignty, the powers of the Court to supervise the exercise of prerogative powers particularly where existing law or rights are affected, and the fundamentally political, not legal, nature of the Sewel Convention on consultation of devolved legislatures. However, the Court was at pains to say that its judgment reflects well-established constitutional principles.

Kieran Jones, Partner and Director of Insurance, Weightmans:

This is a decision of great constitutional importance – the reiteration that Parliament is sovereign and has the power to decide upon changes in UK law,‎ as opposed to the government using the historic royal prerogative power. The detail of the judgment will need to be digested over the coming days, and will form the basis of the exact course of action the Government may take when it comes to the draft legislation they put to Parliament.

The judgment was largely as expected, although the decision that the Government would not have to consult devolved Parliaments is quite a contentious point, which is likely to come as a great relief to the Department for Exiting the EU. Allowing devolved Parliaments a specific opportunity for consultation, given the overwhelming vote to remain in both Scotland and Northern Ireland, would have opened the doors to even more scrutiny and potential delay – it will be interesting to see how the respective parliaments respond to this.

This result should give Parliament the opportunity to debate the ground rules set out in the Prime Minister’s speech at Lancaster House last week, and it remains to be seen how much this debate will frustrate or delay the Article 50 process.  We keenly await the outline of the proposed legislation, which will impact the UK, the legal services industry and our clients.

Hazel Moffatt, Partner, DLA Piper:

The extent of Government’s loss has been limited, the Supreme Court unanimously agreed that the Government does not require to either consult or seek the consent of the devolved governments. By doing so, the Supreme Court has removed at least one material political obstacle from the path of the Government.

The Government is said to have prepared various versions of a draft Bill ready to be introduced within the next week depending upon the Supreme Court ruling.  Whether its anticipated brevity and simplicity will help curtail debate and scope for amendment in both the House of Commons and the House of Lords – essential if it is to achieve its ambitious timetable of triggering Article 50 by the end of March – remains a major challenge. Managing the House of Lords in particular in this process may prove difficult.

There are also other legal proceedings in the offing, not least as to whether the Article 50 notice, once given, can be revoked. It is unlikely that we have seen the end of court involvement in the Brexit unwind.

Alexander Pelopidas, Partner, Rosling King LLP:

The Supreme Court noted that the referendum was only advisory and that the Act allowing for the referendum failed to specify what the consequences of the referendum would be.

The decision is a blow to the government and means that it must now propose a bill, for the approval of Parliament, which will allow the government to invoke Article 50. The government will need to tread carefully in respect of the bill that they propose to Parliament which opens the door potentially for politicking.

Whilst a one-line bill could, legally, give the government the authority it needs, it could be open to further legal challenge on the basis that it does not provide enough detail. Conversely, a more detailed bill could open the door for MPs to propose various amendments to the bill which could delay its approval and ultimately delay the Prime Minister’s current timetable for Brexit.

Mark Peters, Managing Director, Protiviti:

Whilst today’s verdict means that government will need to seek approval from MPs and peers to initiate an EU exit, there are still significant unknown risks and threats to an organisation’s business objectives, financial management and its business operating model. Whatever your view on Brexit, a well-prepared organisation should still be thinking about potential implications and putting in place contingency arrangements across a wide range of scenarios that affect most if not every part of its business and operational activities. The organisations that are approaching Brexit as another ‘Change Driver’ and have a well-defined ‘Change Operating Model’ which is risk based, measurable and addresses the people, compliance, trading and innovation implications of Mrs May’s recently announced 12 point plan will be best positioned to be resilient, adapt and respond to the uncertainty.

Trevor Tayleur, Associate Professor, The University of Law:

The majority of the Supreme Court justices adopted the argument that succeeded in the High Court, namely that rights conferred by an Act of Parliament (the European Communities Act 1972) can only be removed by another Act of Parliament and not by royal prerogative powers. However, the government will be able to take considerable comfort from the fact that the Supreme Court said that it was up to Parliament to decide upon the form of legislation. Accordingly, a simple Bill authorising the service of the Article 50 notice will suffice, rather than the full-scale repeal of the 1972 Act.

Moreover, the majority of the Supreme Court ruled that the government does not need the consent of the Scottish Parliament and the Welsh and Northern Ireland Assemblies to trigger Article 50. Consequently, the government can be confident that it will be able to adhere to its timetable of serving the Article 50 notice in March.

Although the judgment is of great constitutional interest, its effect on the Brexit process is unlikely to be significant, as Parliament is likely to give the government the requisite authorisation.

Alistair Kinley, Director of Policy and Government Affairs, BLM:

A good deal of our work relates to advice and claims handling in respect of insurance policies issued by UK insurers and covering UK risks. The Supreme Court’s decision today will have no appreciable effect on that.

But we do act for many insurers who provide international covers and who have passporting arrangements in place to trade in other Member States. What is important there is not so much the outcome of the Supreme Court decision on the process for ‘Brexit’ but certainty, as soon as possible, about when the UK Government will trigger article 50 and what – given that we now know that the UK is leaving the single market – transitional arrangements for insurance and financial services will look like.

An important point to note is that we are going to need new rules for cross-border cases because the current ones (covering jurisdiction, applicable law and enforcement of judgments) come from EU regulations. These have a very wide scope, applying as much to consumer cases – foreign motor accidents, holiday injuries and the like – as to commercial disputes. Some early indication of the principles of the UK’s approach here would be very welcome for practitioners and insurers alike.

1 Comment
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