Brexit and the Supreme Court

We cannot end 2016 without mentioning the most far reaching constitutional decision to affect this country in at least the last 40 years. The UK voted to leave the European Union in the referendum on 23 June 2016. As we have reported in an earlier newsletter, the implications of this decision will be felt across all areas of business, commerce and the law for many years to come. As such changes are made and become effective we will report in our newsletters.

However from 5-8 December 2016 the highest court in England and Wales, the Supreme Court considered an appeal relating to the triggering of the UK's exit from the European Union.

Given the huge international media interest, the case has prompted the following interesting note on the Supreme Courts website - 'Due to limited space in the main courtroom, you are strongly advised to watch online using one of the various live web streams rather than travel to the court and risk the disappointment of not getting a seat in court.'

Following the referendum, the UK announced that it would notify the European Union of its intention to withdraw from the Union under article 50 (1) of the European Union (Amendment) Act 2008. Once notification is given, the notifying Member State will cease to be a member of the European Union either on the date of entry in force of a withdrawal agreement or 2 years after the notice is given unless that period is extended by agreement between the notifying Member State and the remaining members of the European Council.

The December 2016 appeal to the Supreme Court is both exceptional and interesting because most unusually all 11 Supreme Court judges will preside.

The question before the court is:  'Does the Government have power to give notice pursuant to Article 50 of the Treaty on European Union of the United Kingdoms intention to withdraw from the European Union, without an act of Parliament providing prior authorisation to do so?'.

There has been a huge amount of press coverage claiming that the judges will be entering the political arena and that they should not do so. However most legal commentators have pointed out that the only issue of concern to the judges is a purely procedural one i.e. does Parliament need to ratify an Act of Parliament to enable the UK to withdraw from the EU or can the Government of the day trigger Article 50 on its own?

The decision of the Supreme Court will be given in January 2017 and we will, of course, report on the result.