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The background

In its judgment on 3 November (R (Miller and Dos Santos) v Secretary of State for Exiting the European Union), the Divisional Court found that the Government “does not have [the] power“—without Parliamentary say-so—to trigger the UK’s withdrawal from the EU

As anticipated, the Government has appealed to the Supreme Court and a hearing will take place between 5 and 8 December 2016 before all 11 Justices – the largest panel since the Law Lords were created in 1876. The judgment is expected to be delivered in early January 2017.

The Government’s Grounds of Appeal

The Government published its Grounds of Appeal to the Supreme Court in the case earlier this month. Perhaps surprisingly (in light of the High Court’s wholesale rejection of the Government’s case last month), the Secretary of State’s submissions have not changed substantively since the Divisional Court hearing. 

In particular, the Government has not altered its position on whether notification under Article 50 of the Treaty on the Functioning of the EU is revocable, arguing that the Supreme Court should proceed on the basis of the agreed understanding between the parties that it isn’t and that, in any event, the correct legal position is “of not practical significance to this appeal“. The High Court made its decision on this basis, but the Lord Chief Justice stated at the time that, if this shared understanding was not correct, the Claimants’ case would be “blown out of the water“. 

The Government’s motivation for not arguing Article 50 is revocable is likely to be to avoid the risk of a reference to the Court of Justice of the EU (CJEU) for a final determination of the question, which would be politically unpalatable. However, it is unclear whether the Supreme Court will be as amenable as the High Court to deciding a case of such constitutional importance on the basis of a mutual understanding between the parties, rather than determining the true legal position. If it opts for the latter approach, there is a significant chance that the Supreme Court could decide to refer the question to the CJEU, which would have serious political and timing implications.

Scotland and Wales to intervene in Supreme Court case

On 18 November 2016, the Supreme Court granted the Scottish and Welsh governments leave to intervene in the appeal. Both governments will be allowed to make their separate cases to the court in order to make their views heard over the triggering of Article 50.

It is expected that the Scottish government will argue against the UK Government’s position. The Attorney General for Northern Ireland is also expected to intervene. 

What if?

If the Government loses its appeal, this would very likely mean that an Act of Parliament would be necessary to empower the Government lawfully to trigger Article 50. While there are examples of Parliament having passed legislation exceptionally quickly in the past, the Government would face considerable political challenges in getting Parliamentary approval so as to meet its target of giving notice to the European Council by March 2017.  

A key issue for Parliament to consider when debating the Bill will be what (if any) conditions to impose on the triggering of Article 50, for example in relation to the degree of Parliamentary scrutiny over the negotiation process.

The Government has thus far been keen to avoid giving a running commentary on its proposed negotiations with the EU and has reportedly already drafted a tightly-worded Bill, ready for introduction to Parliament in the event that it loses the case in the Supreme Court, which it hopes will prevent Parliament from introducing such conditions. 

Whether the Government’s draft Bill can prevent Parliament pressing the Government to open up its proposed negotiation terms to Parliamentary scrutiny remains to be seen.  In particular, the House of Lords may be more willing than the House of Commons to cause significant delay.

It is unclear whether the Government would seek to force the Bill through in the face of Lords opposition.

Charles Brasted is a partner at Hogan Lovells