The Commons debates over the course of this week have been second only to President Trump’s first days in office in dominating the headlines.

Equally impossible to escape was press coverage of the Supreme Court’s decision in R v Miller and others- the ‘Brexit’ court case, which of course came after the result of the Referendum in June 2016.

Erica Restall, Partner and Head of Public Law, offers a snapshot of the case, the issues surrounding it, and what might happen next.

The background

Article 50 of the Treaty on the European Union contains the procedure for withdrawing from the EU. As a first step, the UK Government will need to notify the European Council, by way of a formal Notice, that it intends to withdraw.

Serving the Notice is required under Article 50(2). It will not instantly change any laws- it just starts the process, which will need further legislation to be completed.

Lord Kerr, one of the Justices tasked with deciding the case, has remarked that he had never envisaged Article 50 being triggered- and he was responsible for drafting it!

Why was the Supreme Court involved?

The Court considered whether it would be possible for Article 50 to be triggered without Parliament’s endorsement. It decided that Parliament could not trigger Article 50 without putting a law in place first (and to do that, it must successfully pass through both Houses of Parliament- a process which will be as keenly followed by the media as the referendum and its aftermath)

Comments made by the Court

In its Judgment, the Court was at pains to point out that ‘Judges impartially identify and apply the law in every case.’ In the Press Summary, it emphasised that ‘the issues in these proceedings have nothing to do with political issues such as the merits of the decision to withdraw,’ clearly distancing itself from the politics surrounding the case.

What has the Government had to do now?

On 26 January, in response to the Court’s decision, the Government published the European Union (Notification of Withdrawal) Bill. The brevity of the Bill is clear- it only runs to 137 words, beaten only by a 1918 Act which gave women the right to stand for Parliament (a right created in only 127 words). By contrast, the Companies Act 2006 has 1,300 sections!

What happens next?

The Bill was voted through Parliament last night which paves the way for the Prime Minister to start the Notice period.

After the Notice has been given (by the end of March) it is expected that the ‘Great Repeal Bill’ will be brought before Parliament. This is unlikely to be as concise as the document published on 26 January- and will certainly be subject to no less scrutiny than the Miller case.


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