Article 50, the Supreme Court & Scotland


Gina Miller outside the High Court.

The high court ruling made last Thursday an interesting day for many, which has derailed Theresa May’s strategy for Brexit. She can no longer control Britain’s approach to Brexit alone, and Parliament must play a role. David Davis; the Secretary of State for Exiting the European Union included in his statement on Article 50, on the 7th November that:

“Our position in the case was that the Government were therefore entitled to invoke the procedure set out in article 50. The court has, however, come to a different view. It held that the Government do not have the prerogative power to give notice under article 50 without legislation authorising them to do so.”

He went on to say that the government disagrees with the Court’s judgement and;

“The country voted to leave the European Union in a referendum approved by an Act of Parliament. Our position remains that the only means of leaving is through the procedure set out in article 50, and that triggering article 50 is properly a matter for the Government using their prerogative powers. As a result, we will appeal the High Court’s judgment at the Supreme Court.”

The legal arguments are being prepared, as the government has been given permission to leapfrog the Court of Appeal straight to the Supreme court, likely scheduled in early December with the decision in January. David Davis and the government still believe that this legal timetable will allow for Article 50 to be triggered in March 2017, and they will respect and deliver the referendum result, with the  words; “the people have spoken, and we intend to act on their decision.”

The Prime Minister could try to trigger Article 50 after a debate in the House of Commons rather than after an Act of Parliament. However, the opponents of Brexit could then legitimately mount a legal challenge that Parliament had not been properly involved, and once again bring up legal process.

The only way for the Government to ensure it avoids this kind of challenge is to obtain an Act of Parliament, which could be proposed by a bill. This would authorise Theresa May to trigger Article 50, although MP’s would be unlikely to block  a bill like this, it could be amended with guaranteeing continuing to be members of the Single Market for example, and could possibly make the government’s negotiating position harder and impossible to deliver.

Within the Q&A after the statement it was also mentioned by Anna Soubry MP, and has been discussed by many on social media about the insulting language and abuse aimed at the judiciary, with one newspaper branding the judges as “enemies of the people”. Also Gina Miller who brought the case to the court has received threats of violence via social media. The number of hate crimes based on nationality have also jumped, with this division being shown to be on the increase surrounding the referendum, and whatever our view on Brexit we need to work together to build a country we can be proud of.

The news today (8th November) is that the Scottish Government is looking to intervene in the case when heard in the Supreme Court. If the Supreme Court was to allow the Scottish government’s intervention and ruled against the UK government, it could mean there would have to be a vote on Article 50 in Holyrood as well as in Westminster. First Minister Nicola Sturgeon has said:

” the democratic wishes of the people of Scotland and the national parliament of Scotland cannot be brushed aside as if they do not matter”.

The Welsh government has also said it would seek to be involved in the case, while the Northern Ireland Attorney General has told a court in Belfast that one of two legal challenges to Brexit should be fast-tracked directly to the Supreme Court.

The debate surrounding Brexit and what it means is far from over, and from what I have seen there has been no proper plan outlined on how best to carry out this exit; before or since the referendum result in June. Brexit may still happen but there is many political and legal reasons why it could prove to be impossible to deliver, and many will keep on the fight against.


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