Separation is the last thing on your mind on the day you get married, quipped one of the Lord Justices recently in the Supreme Court hearing of the Article 50 Brexit case; “speak for yourself” replied another.
Quite wisely, the barrister on his feet at the time, James Eadie QC, said “I am not going anywhere near that one. I sincerely hope Mrs Eadie is not watching”.
It’s not a bad analogy; much like a divorce case, the parties separating post-Brexit are already preparing their negotiating positions before the separation proceedings get underway. We all know that to start the ‘divorce’, the UK needs to trigger Article 50 – that’s the legal mechanism that gives us two years to agree terms with the EU before we officially leave.
But who has the power to give notice under Article 50? That’s what the case in the Supreme Court was all about. The Government argues that it has the power, but the Claimants (an investor, a hairdresser and various others) say that only Parliament has the power. The Government lost the first round in the High Court, but it appealed to the Supreme Court – the highest UK Court.
All 11 Lord Justices of the Supreme Court heard the Government’s appeal. The Government claims that it has the power to trigger Article 50 using a “prerogative power” – a power held theoretically by the Queen but in practice by Ministers. There aren’t many prerogative powers left in existence, but one that does remain is the ability to enter into international treaties.
In 1972, Parliament passed the European Communities Act to take us into the EU. However, that Act was silent about who had the power to take us out of the EU – Parliament or Government? Strangely, no legislation since the 1972 Act has said who holds that power either. So, both sides in this case have to argue that it’s implicit that the power to take us out of the EU sits where they say.
The Government says that since it has the power to enter into international treaties, it has the power to take us out of the EU. It says that if Parliament had wanted to take that power away, it could have done – but it hasn’t. Government argues that whatever the position was in 1972, the Court has to look at the position now in 2016 and ask itself “where does the power sit now?”. It says that after the 2015 Referendum Act, and various other Acts since 1972, the power must sit with the Government.
The Claimants say that it’s unthinkable that Parliament, having embroiled us so deeply in the EU, could have meant for a Minister to have the power to take us out of the EU; such a move must require an Act of Parliament. The Claimants say that triggering Article 50 will have a big impact on the rights of citizens, and a prerogative power can never be used to unpick domestic law rights.
But what really matters is what the Supreme Court says. It’s expected that the Court will give its judgment in the New Year. It could go either way; it’s a difficult case and the law is complex.
If the Government wins, it can crack on with triggering Article 50 in line with its timetable. If the Claimants win, it’s likely that an Act of Parliament will have to be passed before Article 50 can be triggered.
What does all of this mean for farmers? More delay and uncertainty, unfortunately. The Government has been clear that Brexit will happen regardless of the outcome of this case, but if the Government loses in the Supreme Court, it’s going to be a longer and rockier road to get there.
- Find out more about the Article 50 case High Court judgment here.