“The Brexit Case” – the Supreme Court’s Decision

27 January, 2017

The High Court in the case of R. (on the application of Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2766 decided that the UK Government could not trigger Article 50 and cease to be a member of the EU without an Act of Parliament (see https://www.crippspg.co.uk/brexit/brexit-case-end-brexit/).  This decision was referred to the Supreme Court, which was also asked to decide whether they must consult the law making bodies of Northern Ireland, Scotland and Wales before Article 50 is triggered.  


What did the Supreme Court decide?

The Supreme Court upheld the decision of the High Court and reaffirmed the position that the Government cannot trigger Article 50 without this power being afforded to them by way of an Act of Parliament.

It was further concluded that neither the Northern Ireland Act 1998 (the act granting devolved powers to the Northern Ireland Assembly) or the Sewel Convention (the convention whereby the UK Parliament will not normally legislate over devolved matters without the agreement of the devolved legislature) prevented the UK Government from triggering Article 50. The decision to withdraw from the EU is not a function that has been delegated to the Secretary of State for Northern Ireland and the Sewel Convention was a political convention and did not give rise to a legal obligation.

At the heart of the Supreme Court’s decision is the principle that the UK Parliament (based in Westminster) is the supreme law making body in the UK and unless it has expressly delegated this authority then (with a few very limited exceptions) law can only be made, or un-made by an Act of Parliament.


What’s next?

This case clarifies the procedure that the UK Government must follow to trigger Article 50.  Draft legislation has already been published by the Government and once passed this Act would give ministers the power to impose Brexit on the whole of the UK (including Scotland, Northern Ireland and Wales), without further consultation.  It is possible, however, that political pressure will force further consultation with the devolved law making bodies of the UK.


A copy of the judgment and a summary of the court’s findings can be found on the Supreme Court’s website https://www.supremecourt.uk/news/article-50-brexit-appeal.html