Four possible outcomes in UK Supreme Court’s Brexit ruling

Pro-Brexit protesters gather at the Houses of Parliament in November urging Theresa May not to delay triggering Article 50 notification

Pro-Brexit protesters gather at the Houses of Parliament in November urging Theresa May not to delay triggering Article 50 notification  © Getty Images

The UK Supreme Court will hand down its judgment later this morning in the Article 50 appeal case. Nobody outside the court will know the decision before today, and the lawyers for the parties will be told just in advance.

The appeal hearing was in December, and the Supreme Court has moved quickly to get the judgment out by the end of January.

(My post on what we learnt from the Supreme Court hearing is here, and my reports from the hearing are here. The excellent and fully linked Supreme Court page is here.)

The court is being asked for a “declaration” as to whether the government can use the so-called “royal prerogative” to make the Article 50 notification, which formally commences the process for Britain to leave the EU.

The government says that, as a matter of constitutional law, the royal prerogative is all that should be needed. Those bringing the claim say that parliamentary approval (in the form of an act of parliament) is needed. The court also heard submissions that the devolved administrations of Scotland, Wales and Northern Ireland should be given a formal role, either a veto or a right to be consulted.

The government lost the case in the High Court (of England and Wales) in October 2016 and decided to appeal to the Supreme Court rather than present a bill to parliament. As this court also has jurisdiction in respect of Scotland and Northern Ireland, additional “devolution” points were made at the December appeal hearing that were not made at the High Court hearing.

There are, broadly speaking, four foreseeable outcomes to the appeal.

  • First, a government win. This means the Supreme Court declares that it is open to the prime minister to make the notification without parliamentary approval. Theresa May thereby takes control of the timetable and there would be no legal or constitutional barrier to her making the notification by the end of March, as she plans.
  • Second, a government loss on the parliamentary approval point. This means that the High Court decision is upheld and Mrs May has to bring a bill before parliament. Though there is little doubt that the bill will ultimately pass in the House of Commons, there are issues as to whether it could be delayed by MPs or the House of Lords. Keeping the March deadline would still be possible but it would be outside the government’s direct control.
  • Third, a bad government loss on the devolution points. This could be in addition to or instead of a need for parliamentary approval. In either case, it would mean a potential considerable delay in the process, not least because of the upcoming Northern Ireland elections. This outcome is less likely than the two above, but the government was rattled by the devolution arguments at the appeal hearing.
  • Fourth, a reference to the European Court of Justice. This would be amusing but is less likely than the three above. The point that would be referred is about the revocability of the Article 50 process. This issue, however, was not in dispute at the appeal hearing (or in the High Court) and the judges seemed not to be interested in it. But if a reference is made there will be substantial delay (of months if not years).

Overall, I think the government is more likely to lose than to win. That said, the royal prerogative is a powerful part of English law, and some clever and learned lawyers think the prime minister may win.

If the government loses, especially on the devolution points, then it has only itself to blame for any inconvenience. Mrs May should have got on with the job of Brexit after the High Court defeat and brought a bill, which would probably have been on the statute book by now.

And the sole reason there is any case, let alone appeal, is because parliament (and the government) neglected to put any provision in the referendum legislation for what would happen on a “leave” vote. One simple clause would have prevented this entire case. Whatever the result of the appeal, the judges have been left to mop up after the incompetence of the government and the legislature.

This post will be updated with the judgment on Tuesday

This post originally appeared on Financial Times

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