UK's Supreme Court Hearing on Article 50 Concludes
December 12, 2016
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By: Gemma Hyslop
In an unprecedented hearing last week, the eleven permanent Justices of the Supreme Court sat together to hear the case of R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union. They met to decide if the UK government can invoke Article 50 and so commence the Brexit process without obtaining prior parliamentary approval.
The four-day hearing took place as a result of the appeal brought by the government following the unanimous decision at the High Court in favour of Ms Miller and the argument that parliament must be consulted on when to start the Brexit process.
In a move seemingly designed to test the British public’s appetite for complex and nuanced legal argument, the Supreme Court live blogged the four-day hearing, parts of which were also televised.
The government set out its argument first, asserting that the royal prerogative allows the government to proceed to enact Article 50 without consulting parliament; as Ministers negotiated the treaty that allowed the UK to join Europe in 1972, they retained the power to withdraw from that same treaty.
The representatives for Miller et al. responded contesting that triggering Article 50 without such consultation would lead to rights established by parliament being annulled; Ministers do not have the power to unilaterally change the constitution.
A myriad of legal issues were raised over the course of the four days, not least arguments from all devolved powers that their individual approval should be sought from Westminster before the formal Brexit process begin.
As the hearing drew to a close, early predictions indicated a seven – four split in favour of empowering parliament to decide when Article 50 should be invoked, as opposed to the government.
Opinion is divided on whether the government would seek to appeal a negative decision, the only such route being to Europe. This would add months to the decision time line, further delaying the government’s proposed March 2017 deadline for engaging Article 50.
Whilst the judgement will not overturn the referendum decision that the UK shall leave the European Union, it will determine whether the decision to formally start the process to leave Europe is vested in the government or parliament.
The ruling is expected in January 2017. Politicians, pundits and the public alike wait to see what the New Year brings.
