In his second guest blog post for us, Kenneth Armstrong, Professor of European law at the University of Cambridge, explains why the supreme court is involved in the Brexit debate.
The ‘Article 50’ Case
At the start of December, the Supreme Court spent several days hearing a case that concerns the powers of the Prime Minister and her ministers to begin the process of withdrawing the UK from the European Union. In a referendum held in June, voters decided that the UK should leave the EU. But the referendum is not binding and does not automatically cancel the UK’s membership of the EU. For the UK to leave the EU, it must follow the procedure laid down in Article 50 of the Treaty on European Union: this is one of the treaties agreed by all of the EU’s Member States.
What the Supreme Court must decide is whether the Government can begin the process of withdrawal simply by sending a letter to other European Prime Ministers and Presidents or whether it must first go to the UK Parliament and obtain an Act of Parliament authorising the Government to send the letter. The legal argument is that as Parliament originally consented to the UK being a Member State only Parliament can take the steps necessary to begin the process of withdrawal. Lawyers acting for a group of UK citizens argue that the European Communities Act 1972 – the Act of Parliament which accepted UK membership of the EU – created rights which citizens could enforce in English courts. These rights will be lost once the UK leaves the EU. So, they argue that as Parliament created those rights only Parliament can take them away.
The Government believes it does not need a new Act of Parliament but instead already has sufficient legal powers to send the letter. It says these powers are ‘Prerogative Powers’. These are the powers historically exercised by Kings and Queens and which are now exercised on the Queen’s behalf by the Prime Minister and her ministers.
In making its decision, the Supreme Court will carry out the proper role of a court in ensuring that the Government is exercising power in accordance with law. This is an example of the rule of law. It is not for the Supreme Court to decide whether ‘Brexit’ is a good idea. That is a political question which the Court will not answer. This is an example of the separation of powers.