Earlier this week, Fieldfisher published our views on what we dubbed "The Article 50 Legal Challenge".
Today this challenge intensified with the High Court holding that Parliament must vote on whether Article 50 can be triggered. In a nutshell, Lord Chief Justice, Lord Thomas - sitting with the Master of the Rolls, Sir Terence Etherton, and Lord Justice Sales ruled that Government do not have the power to start the process of leaving the European Union without the approval of Parliament.
Previously, the UK Prime Minister, Theresa May had announced that she had planned to trigger Article 50 by the end of March 2017 by using the royal prerogative. This raised serious questions of scrutiny and accountability and led to lead campaign group, People's Challenge, opposing this approach by arguing that this strategy was "unconstitutional".
In a landmark decision earlier today, the Government was defeated and the Lord Chief Justice ruled that without Parliamentary approval the Government would be acting "contrary to fundamental constitutional principles of the sovereignty of parliament".
The Government has announced that this decision will be appealed in the Supreme Court, which is expected to be heard on 7 December 2016. In the last hour, Nicola Sturgeon, the First Minister of Scotland, has released a fresh statement suggesting that the UK Government should "accept this decision rather than take it to the UK Supreme Court".
The Government remains "determined to respect the result of the referendum" and the appeal is likely to still go ahead.
Obtaining parliamentary approval may delay the Brexit process until later than March 2017, though it is unlikely to stop Brexit from happening altogether. If Parliament were to vote against triggering Article 50, the UK would face what has been called a "constitutional crisis". The majority of Parliament supported the remain vote in the referendum, which is at odds with invoking Article 50. Some commentators have queried if this will lead to a general election, effectively meaning that there is a second referendum on leaving the EU.
The key question lies in what form of approval will be needed from Parliament as this was not specified in the judgment. It has been suggested that an Act of Parliament would be required to invoke Article 50 and this will require the approval of Parliament.
A further update will be provided once the Supreme Court's judgment has been published, which is due sometime in January 2017.
At this stage, it is too early to say what the effect on IP rights will be, and we will continue to keep you posted.
The full judgment can be accessed here: https://www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-state-for-exiting-the-european-union/
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With thanks to Alice Edwards in preparing this Article.