Supreme Court Article 50 Ruling - Lawyers Respond

Aug 12, 2019

Written By Jack J Collins, Editor of AllAboutLaw.co.uk

Lawyers and important legal figures from across the country were quick to release statements in the wake of the Supreme Court Article 50 ruling last week. Here at AllAboutLaw, we tracked down some of the most important statements from both academic and practising lawyers and have reproduced them here for you to gain a better understanding of the legal interpretations of the case.

Mishcon de Reya statement:

"From the beginning, the purpose of this case was to ensure that the Government followed the correct constitutional process in triggering Article 50. Today 8 out of 11 Judges upheld the judgment of the High Court.

"As lawyers, we believe in the rule of law, the separation of powers and the independence of the judiciary. This case has seen challenges to each of these principles we hold dear. We are proud that today the strength and primacy of those principles has been restated by the highest judges in the land."

Trevor Tayleur, associate professor at 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.”

Charles Brasted, partner at Hogan Lovells:

“The Claimants argued that an Act of Parliament was required to authorise the triggering of Article 50, and the Supreme Court has ruled (by a majority of 8 to 3) that they were right.

"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.

"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.“

Dr Javier García Oliva, a Senior Lecturer in Law at The University of Manchester.

"It is interesting to note that the dissenting judges interpreted the situation differently, whilst essentially agreeing on the two key principles to be applied (namely that Ministers are entitled, and frequently required, to use prerogative powers to make international agreements, and also that prerogative powers may not generally be used to alter the law).

"In the understanding of Lords Reed, Carnwarth and Hughes, the European Communities Act 1972 simply provided that such law would apply whilst the relevant Treaties applied to the UK. The 1972 Act came into force on 17th October of that year, but had no practical legal consequences until the Treaty of Accession was ratified and came into force.

"Thus, in the view of the dissenting judges, any legal rights were contingent on the Treaties according to the conventional rules of statutory interpretation.

"Obviously, the minority interpretation did not carry the day, and the remit and supremacy of Parliament was powerfully affirmed. Confirmation that Parliament is the final arbiter of the democratic will of the people is broadly to be welcomed, and given the momentous significance of the decision, it is appropriate that any doubt about the intention of Parliament (in both 1972 and 2015) should be remitted to Parliament for resolution.

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