Article 50 Litigation - High Court words not to forget

The media caravan has moved on from the Supreme Court, and attention is now focused back on Parliament. This piece picks out a handful of paragraphs from the High Court's judgment as referred to in my earlier article. These paragraphs might provide some enlightenment set against the political rhetoric that is now again in full flow. 

My reading of the Supreme Court judgment is that the judgment does not contradict or qualify any of the statements in the paragraphs referred to below.

Paragraph numbers are from the High Court's judgment. Words in speech marks are also from the High Court's judgment. Words outside speech marks are my attempt to summarise accurately what the High Court said in the relevant paragraph. Words in square brackets are my own commentary.

Para 9: Article 50 states that any Member State may decide to withdraw from the Union "in accordance with its own constitutional requirements". Para 2 of Article 50 puts responsibility on to the Union to negotiate an agreement with the State on the arrangements for the State's withdrawal. Under Para 3, the formal exit is when the withdrawal agreement comes into force, or failing that, two years after the Article 50 notification. The European Council has power to extend the two-year period. Its decision must be reached unanimously.

[This simply states what Article 50 says. Whether the European Council would extend the deadline is a matter of conjecture. The odds must be that it would be extremely unlikely for this to happem. However, negotiations may go to the wire, and we have learnt in 2016 that truth can be stranger than fiction when it comes to politics.]

Para 10: An Article 50 notification cannot be withdrawn. It also cannot be given unconditionally.

[In the Supreme Court judgment, this was noted as accepted as common ground between the parties, and thus was not considered by the Court as a point on which it needed to rule.]

Para 12: A withdrawal agreement "may preserve some parts of the relevant Treaties or may make completely new provision for various matters".

[Thus something short of a hard Brexit is legally possible. The Government's current stance is that we will have a hard Brexit but we will independently negotiate for new arrangements that will protect the UK's interests. The scope of these, and with whom exactly they are negotiated, remains to be seen.

It also remains to be seen how far in the end the new arrangements will be materially different from what would have happened if the withdrawal agreement had followed a pattern contemplated as a possibility in the words quoted in Para 12. However, pehaps presentationally it looks better politically to close the door and then open it again slightly, rather than exit while leaving the door slightly ajar.]

Para 13: "The Secretary of State was at pains to emphasise that, if a withdrawal agreement is made, it is very likely to be a treaty requiring ratification and as such would have to be submitted for review by Parliament."

[The Secretary of State's High Court argument was an attempt to assert that Parlament would in most likelihood have its say on the UK's exit from the EU, to the intent that the UK government proceeding initially under the Royal Prerogative would not be adverse to Parliament's authority. 

However, the High Court was not impressed with this argument, retorting (Para 14) that "Parliament's consideration of any withdrawal agreement...would thus be constrained by the knowledge that if it did not approve ratification of it, however inadequate it might believe the withdrawal to be, the alternative would likely eventually be the complete removal of all rights for the United Kingdom and British citizens under the EU Treaties when the relevant Article 50 time period expires".

In the political arena the Prime Minister has made clear that she would prefer to have a clean exit from the EU rather than a bad deal for the UK. And we are back to the semantics of whether a "deal" would be an exit deal, or some form of new deal (if indeed done with the EU as opposed to working bilaterally with individual States) after exit ie after a hard Brexit. Further there will be some Brexiteers for whom hard Brexit is the only option, however difficult the EU or individual EU countires may be over trade or other arrangements after the UK's departure.

What does seem pretty clear is that the bringing of any exit deal as such to Parliament would be a matter of requirement and not an act of Governmental discretionary magnanimity. Presumably (and here I reach the edge of my comfort zone in commenting on constitutional law matters) any Treaties made independently after Brexit would also require Parliamentary approval, in addition to the UK legislation that we might choose to enact in order to replace such lost EU legislation as we might find palatable to retain as part of UK law.]



The Justices may feel some relief that the spotlight is off of them for the time being. It is interesting to note how, once the lawyers had got into the minutiae of legal debate, described by the Daily Telegraph (7 December ) as "long rambling jargon filling the livestream of proceedings", the level of some sections of press commentary became reduced to speculation on what might be the colour of Justice Sumption's tie on the folowing day.

However, those who enjoy deriding our judicial system might reflect on how fortunate we are to have a rule of law that truly means something, whatever one's individual feelings may be about the merits of a particular decision.


The author is a former City law firm partner and professionally qualified tour guide, who can arrange visits to the Supreme Court including (in law term time) sitting in on part of a case. See the Contact section of my site -