Victory in the Supreme Court – and what’s next for Parliament and the People’s Challenge

As has already been widely reported, today an 8-3 majority of the Supreme Court upheld the Divisional Court decision, ruling. They stated:

We cannot accept that a major change to UK constitutional arrangements can be achieved by a ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.”

The Court’s full judgment is here. Here is the Court’s written summary and here is footage Lord Neuberger’s short hand-down speech.

Legal history has undoubtedly been made. Ordinary people’s voices have been heard on fundamental rights issues, thanks to the People’s Challenge. The majority of the Court said they had grappled with “some of the most important issues of law which judges have to decide”.

Their judgment:

  • affirms that “because the EU Treaties apply as part of UK law, our domestic law will change as a result of the United Kingdom ceasing to be party to them, and rights enjoyed by UK residents granted through EU law will be affected”;
  • puts it beyond doubt that “some rights… will be lost on the United Kingdom withdrawing from the EU Treaties” and that these are, thanks to Acts of Parliament, fundamental domestic rights enjoyed by all UK nationals;
  • explains “complete withdrawal” will therefore “constitute as significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act”;
  • notes that the historical cases show it “is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law”;
  • firmly states “[i]t would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone. All the more so when the source in question was brought into existence by Parliament”; and
  • concludes tantalisingly, in its main section, with the indication that “what form such [authorising] legislation should take is entirely a matter for Parliament… the fact that Parliament may decide to content itself with a very brief statute is nothing to the point.”

Of course, Parliament now may also decide on legislation that is not the ‘one line Bill’ its lead barrister James Eadie QC promised would be the outcome were the appeal to fail.

It will not need to seek the devolved administrations’ approval of the proposed legislation, however, because, said the Court:

Within the United Kingdom, relations with the European Union, like other matters of foreign affairs, are reserved or excepted in the cases of Scotland and Northern Ireland, and are not devolved in the case of Wales”

and the Sewell Convention operated only as a political constraint. The Northern Ireland Act’s self determination provisions did not impact on the Brexit process directly.

In form, then, the judgment is a careful analysis of argument and precedent. But in substance it is no less than a restoration of Parliament to its rightful place as the ultimate decision-maker in our democracy.

What now? The Government will imminently publish an authorisation Bill. MPs will need to decide whether they are prepared to pass it unamended, or to be as courageous as our judges have been and take all necessary steps to ensure they remain in control of the Article 50 process including, critically, the final decision on whether the terms of withdrawal are acceptable.

We are determined to help them, hence the Second People’s Challenge.

There will be one final Update to this first campaign with a breakdown of the work we have done so far. Thank you again for everything you have done to make the People’s Challenge not only possible, but effective.

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