B+M respond to Supreme Court ruling on Article 50

Mark Boni

Mark Boni

This morning’s ruling by the UK Supreme Court stating that The UK Government has to consult Parliament in order to trigger Article 50 has brought this response from Mark Boni, Litigation Associate at Balfour+Manson LLP, Edinburgh and a tutor in public law.

The Court ruled by an 8:3 split that the UK government cannot trigger Article 50 without Parliament’s prior approval.

As EU law is an independent source of UK law, conferring rights on individuals, Parliament’s involvement is required to repeal this.

Moreover, the Supreme Court unanimously rejected the argument that the devolved institutions of Scotland, Wales and Northern Ireland have a “veto” on the UK’s decision to withdraw from the EU.

Whilst the “Sewel Convention”, which requires the consent of Holyrood for Westminster to legislate on devolved matters, is of political importance, it does not fall within the constitutional remit of the Courts.

Even though it was given statutory recognition through the Scotland Act 2016, the wording used in that Act does not make the convention legally enforceable.

The consequence of this judgment is that it is now for the Westminster Parliament to pass an Act (not just a motion) to authorise the triggering of Article 50.

How detailed that Act will be is still unclear. The government is reported to have received advice that a short “one line bill” may find itself back in the Courts.

The Supreme Court’s view is that the form legislation should take is entirely a matter for Parliament; the essential point is that the change is carried out by primary legislation.