Brexit, trigger, Article 50, High Court ruling, Supreme Court rulingIn June 2016, the question in everyone’s mind was whether the UK should opt-in or opt-out of the country’s membership of the European Union. In the referendum of 23rd June 2016, the British public voted in favour of ‘Brexit’ by a 51.9% majority for the UK to leave its 43-year-long membership of the EU, and invoke Article 50 of the Lisbon Treaty to trigger the beginning of the formal process for withdrawal of EU membership.

Fast forward six months…

Following a challenge brought against the government and their reliance on executive powers to take the lead in implementing the outcome of the referendum (with no consultation with ministers) the burning question has been where the authority to trigger Article 50 lies – with Government or Parliament?

In a much-anticipated decision, the High Court ruling of November 2016 has today been upheld by a Supreme Court majority of 8 to 3, ruling that an Act of Parliament will be required to authorise the trigger of Article 50 by the government, before official talks on leaving the EU can begin.

Fundamental change

In summary, it was decided that, as triggering Brexit involves making a fundamental change to the constitutional arrangements which currently govern the United Kingdom, the country’s constitution requires that changes can only be made by Parliament, as the country’s legislative body.

The decision was commended by the solicitors representing the claimants (Mishcon de Reya) as restating the:

  • ‘strength and primacy’ of the principles of the rule of law
  • separation of powers
  • independence of the judiciary.

But what does this now mean for the UK and for Brexit?

The UK government’s intention was to trigger Article 50 by the end of March 2017 to kick-start the negotiation process with the EU (a process which takes a minimum of two years). While this judgement may be perceived as a setback for the government’s timetable, given the extensive public and international interest in this issue, it is unlikely that Parliament would want to delay the process.

The referendum and the circumstances surrounding Brexit have divided the UK, and it seems the method of negotiating the terms of exit may cause some conflict across the four corners of the UK. The devolved authorities of Scotland, Wales and Northern Ireland submitted a number of separate challenges to the government’s proposed approach to trigger formal negotiations with the EU. However, the Supreme Court ruled unanimously against any suggestion that the devolved administrations should be consulted with prior to invoking Article 50, as the UK Government is the responsible authority for relations with the EU.

Despite the government insisting the devolved governments will be kept fully involved, the Scottish National Party (SNP) has already suggested it would bring forward ‘serious and substantive’ amendments to the bill on triggering Article 50.

What happens next?

We therefore seem to have clarity on who can lead the formal process of removing the UK from its membership of the EU. However, this is still the beginning. We are in for a long wait until the full effects of the UK’s separation from formal EU membership will become clear.

Do you have any concerns about how the uncertainty around Brexit is affecting your business?

If you do, then you are not alone. Business owners regularly talk to us about Brexit and to help them make decisions, we set up a dedicated Brexit Response Team. Queries have included concerns about their work force, whether to invest in commercial property, and decisions around expanding areas of their business.

Feel free to get in touch with our Brexit Response Team for a free, no obligation, confidential discussion about your business situation.