UK Supreme Court rules MPs must vote on triggering Brexit

The UK’s highest court dealt a blow to Theresa May on Tuesday by ruling the government must hold a parliamentary vote before triggering the EU exit process.

In one of the most important constitutional cases of modern times, the Supreme Court ruled by a majority of 8 to 3 that the prime minister cannot use royal prerogative to trigger Article 50 and start the UK’s two-year exit from the EU. Instead, she must hold a vote of MPs and peers to begin the process by the end of March.

Lord Neuberger, president of the Supreme Court, giving the court’s ruling, said UK domestic law would change as a result of the UK ceasing to be party to the EU treaties and so rights of UK residents would be affected.

“Therefore, when the UK withdraws from the EU treaties a source of UK law will be cut off. Therefore the government cannot trigger Article 50 without parliament authorising that course,” he said. Three of the 11 judges — Lord Reed, Lord Carnwath and Lord Hughes — disagreed.

Lord Neuberger also ruled that on devolution issues, UK ministers were not legally compelled to consult the devolved governments before triggering Article 50. The 11 judges were unanimous on this point.

This is a positive for the government because putting legislation before parliaments in Scotland, Wales and Northern Ireland under the Sewel Convention — which governs the relationship between Westminster and the devolved governments — could have caused delays and political complications for the prime minister’s March timetable.

Lord Neuberger said: “The Sewel Convention plays an important role in the operation of the UK constitution but the policing of its scope and operations is not a matter for the courts.”

Nicola Sturgeon, Scottish first minister, said the ruling meant it was “increasingly clear” Scotland would have to choose between independence and “increasingly rightwing Westminster government”.

She insisted there was still a “political obligation” for the devolved administrations to be consulted. “Scotland’s voice is simply not being heard or listened to within the UK,” she said.

The government had appealed to the Supreme Court in the hope of overturning a successful legal case brought by businesswoman Gina Miller and hairdresser Deir Dos Santos, who had argued parliament should not be bypassed in triggering Article 50. Both have suffered threats and abuse on social media for bringing the case.

The government argued that Mrs May ought to be able to use the royal prerogative — the residue of powers once held by the monarch — to trigger exit from the EU and that the powers allowed the government to make and unmake international treaties.

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FT coverage: Supreme Court Article 50 Brexit ruling

● Supreme Court decision: key parts of the ruling
● May vows to keep to Article 50 timetable despite ruling
● Supreme Court ruling is a minor headache for Theresa May
● David Pannick: human rights lawyer who won Article 50 case

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The pound initially rallied as the ruling was announced, but fell back in reaction to the court’s decision that the devolved governments would have no say.

Speaking outside court, Ms Miller said the government could proceed with certainty. “This case was about the legal process, not politics. Today’s decision has created legal certainty.”

David Greene, senior partner of Edwin Coe, who acted for Mr Dos Santos in the claim, said: “My client is delighted by today’s judgment. As a Brexiter, he always said his motivation in bringing this claim was to ensure the correct and lawful process applied to triggering Article 50.”

Mrs May is expected to rush a brief bill through both houses of parliament. The Supreme Court ruling said this bill could be “very short indeed, but that would not undermine its momentous significance”.

MPs from across the political spectrum will use the occasion to challenge the government’s negotiating tactics and there are concerns that even a short bill could be amended.

The Scottish National party has made clear it will contest the Article 50 process at Westminster, vowing to put forward 50 “serious and substantive” amendments.

In Westminster, political opposition to an Article 50 bill has crumbled in the months since the initial High Court ruling last November that Mrs May must consult parliament.

Labour peers have indicated they would not try to delay the bill in the upper house and Jeremy Corbyn, the party’s leader, has said he expected his MPs to support Article 50 and uphold the EU referendum result. He has not yet said whether Labour MPs would be formally whipped to support a bill but the number of pro-EU rebels prepared to defy their leader was not expected to pose a threat to Mrs May’s majority.

Downing Street took comfort from the fact that the ruling was not unanimous; the split decision gave Mrs May some cover over her decision to contest the original ruling. “We expected 7-4 not 8-3,” one government official said. “The key point is it’s not unanimous. But the government will now adhere to the judgment.”

The ruling is not the end of Brexit legal action. British Influence, the foreign policy think-tank, wants London’s High Court to rule that an act of parliament is needed to take the UK out of the European Economic Area.

The tax barrister Jolyon Maugham and others want the Irish courts to make a referral to the European Court of Justice on whether Article 50 can be withdrawn by the UK once invoked.

Additional reporting by Michael Hunter