Parliamentary consent needed before triggering Article 50, Supreme Court rules
In a landmark legal case, the Supreme Court has ruled that Parliamentary consent is needed before triggering Article 50 of the Lisbon Treaty, which starts a two year clock on formal negotiations with the European Union, in a blow to the government.
The Supreme Court has upheld the ruling by the High Court, which said last November that MPs should get a vote on activating the formal Brexit process.
The justices voted with a majority of eight to three.
The court also ruled that the government does not have to consult devolved administrations in Scotland, Wales and Northern Ireland before triggering Article 50.
Lord Neuberger, the president of the Supreme Court, said that the judgement is not about leaving the EU but is “about the right of the government to trigger Article 50, and whether the devolved legislatures must be consulted”.
Of the 11 justices, Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge were in the majority with Lord Reed, Lord Carnwath and Lord Hughes dissenting.
The summary of the ruling said: “In a joint judgement of the majority, the Supreme Court holds that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union. Each of the dissenting justices gives a separate judgement.
“On the devolution issues, the court unanimously concludes that neither section 1 nor section 75 of the NIA [Northern Ireland Act] is of assistance in this case, and that the Sewel Convention does not give rise to a legally enforceable obligation.”
Neuberger, said that the Sewel Convention - that Scotland can vote on actions by Westminster on issues that are devolved - is a convention, not law, and is not within the jurisdiction of the court.
Jeremy Wright QC, the attorney general, said the government was “disappointed by the ruling” but will comply with the judgement.
Prime Minister Theresa May was told the outcome of the ruling earlier.
Gina Miller, the fund manager, who along with hairdresser Deir Dos Santos initiated the case, said that MPs would now have the chance to frame the Brexit decision as the case was about “process, not politics”.
However, despite the ruling there is no appetite among MPs to vote against activating the clause. Almost all conservative and Labour MPs are backing triggering Article 50 by the end of March.
In December, May conceded to calls for greater clarity over Brexit and MPs backed a Labour motion to scrutinise the government’s Brexit plan before she triggers Article 50.
Labour leader Jeremy Corbyn said the party would “frustrate” the process, but will set a series of amendments to the eventual act of Parliament including assurances for tariff free access to the single market, guarantee workers’ rights and a “meaningful vote” - a vote before the country actually leaves the EU.
Tim Farron, leader of the Liberal Democrats has said that there should be a second referendum on the final deal reached with the EU.
He said: “The Liberal Democrats are clear, we demand a vote of the people on the final deal and without that we will not vote for Article 50”.
Earlier, Ken Clarke a former Chancellor and Europhile, said that he might be the only Conservative MP who will vote against triggering Article 50, as denying Parliament a vote would be “undemocratic”.
He told BBC Radio 4’s Today programme: “The idea that because the public voted to leave the European Union, the cabinet can now argue with each other about what they do instead, and parliament can be told ‘You’re not allowed to vote on this, we’re not going to ask for a parliamentary majority’, strikes me as totally undemocratic. It is not exactly mob rule but it is the tyranny of the majority to silence people’s opinions on complicated issues of due importance to the future.”
According to a recent poll by YouGov, 54% of people think that the Prime Minister, not parliament, should have the final say on activating Article 50. Some 85% of the Leave voters agree and think May should have the final say, but 61% of Remain voters think Parliament should.
Meanwhile, another legal challenge to leaving the European single market will be heard in February.
British Influence, a think tank which brought the case to the High Court, argues that Britain should remain part of the European Economic Area, which includes the remaining 27 members of the EU, along with Iceland, Norway and Liechtenstein, three of the four members of the European Free Trade Area, after Brexit. It said that for the government to take Britain out of the single market, it would need to activate Article 127 of the EEA agreement.