Following our previous blog post, the Supreme Court today (24 January 2017), by a majority of 8 to 3, dismissed the Secretary of State's appeal and held that an Act of Parliament is required to authorise ministers to give notice of the decision of the UK to withdraw from the EU.
In short, this means that the government does not unilaterally (under the royal prerogative) have the power to start the process of leaving the EU without the approval of Parliament. The permission of MPs must be sought before invoking Article 50 and beginning the two year process of Brexit.
This judgment has the potential to delay the Brexit process causing further uncertainty and speculation around the UK's exit strategy. However, in the majority judgment it was stressed that the decision was not about the referendum result, or a comment on the merits of leaving or staying in the EU, it was quite simply that it would be a "breach of settled constitutional principles" to proceed without authorisation from Parliament.
Following the judgment, the Prime Minister has announced that she intends to stick to the original timetable of the end of March 2017 in order to avoid further delay.
Although it is unlikely that the government will lose a vote in Parliament, the process may not be as smooth as the Prime Minister had once hoped. According to press reports, the Scottish National Party has previously outlined that it would vote against the plans. The Liberal Democrats have also vowed that they will oppose unless the Prime Minister agrees to a second referendum on the final Brexit deal. Whilst Labour leader Jeremy Corbyn, has announced that Labour would not "frustrate the process for invoking Article 50…but would table a number of amendments and seek more details on the government's negotiation strategy".
In a press statement, Attorney General Jeremy Wright has said that "the government will comply with the judgment of the court and do all that is necessary to implement it". Ministers are likely to introduce the Bill that MPs will vote on as soon as possible, as the draft legislation is said to have been prepared before today's judgment. We do know that the bill is likely to be short, with the government's lawyer commenting in the hearing that "one-line" legislation could even be proposed. However, we await Brexit Secretary David Davis' statement later on today which is said to set out the government's legislative response.
At this stage it is too early to say what will be the impact on intellectual property rights of today's ruling, but we will continue to keep you posted.
The full judgment can be accessed here.
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With thanks to Alice Edwards in preparing this article.
On 26 January 2017, the government published the European Union (Notification of Withdrawal) Bill. According to press reports, it is due to be debated initially by MPs on 31 January 2017 and to clear the House of Commons on 8 February 2017, after which it will move to the House of Lords.