Setting aside the legalities for a moment, from the point of view of the ordinary citizen, it may be difficult to see how not giving the elected legislature and our MPs a role to oversee our interests could ever be correct. It has taken a lot of legal thinking, arguments by eminent QCs in the High Court and the Supreme Court, the destruction of a small forest to provide paper, and not to mention occupying the legal blogosphere for the last few months, to get us here. Everybody had a view.
The Court was clear that this case was nothing to do with the outcome of the EU referendum or any of the political issues arising from that decision. The view of the majority of the Court on the legal question was that the European Communities Act 1972 made EU law a source of law for the UK. UK domestic law and the rights of UK residents will change as a result of the UK ceasing to be subject to the EU Treaties and withdrawing from the EU. That therefore requires Parliamentary authority before the process begins. It took almost 50 pages to explain this decision.
While the Court did not tell the Government exactly what to do, it was clear that the Article 50 Notice could not be given by the Government without the prior authorisation of an Act of Parliament. The Government prudently have a draft Bill sitting waiting ready for this eventuality and they plan to publish it later this week. I suspect it will not be very long!
The lead dissenting judgement was given by Lord Reed, one of the Scottish Justices, and raises some very interesting contrary arguments. He took the view that the Crown (for these purposes the Government), was entitled to use the prerogative powers in the area of foreign affairs. Nothing in the 1972 Act changed the exercise of prerogative powers in this area so Parliament did not need to be consulted. Lord Carnwath also noted that the Government is accountable to Parliament for what it does including the exercise of the prerogative powers and that the process would result in legislation before Parliament at a later stage.
The second element of this decision arose from consideration of devolution issues. These arose primarily in the context of the Northern Ireland legislation. However the Scottish and Welsh Governments intervened asking the court that, if the Westminster Parliament was to consider legislation before Article 50 was triggered, then the Scottish Parliament and the relevant Assemblies should also have a chance to consider the legislation by virtue of the Sewel Convention. They argued that since the convention now has statutory status in the Scotland Act and the Welsh Act they should be consulted.
The Court were unanimous is rejecting those arguments. They agreed the Convention was an important political constraint and had an important role. However that was not enough to give the Courts a role in policing its scope and operation and it was not within the constitutional remit of the courts.
So where does this decision leave us? Legislation will be introduced into Westminster quickly. The Government will try to move it through the Commons and the Lords in time to allow the Article 50 Notice to be given by the end of March. It is unlikely they will not be able to achieve this but it may be a rocky political ride. There are now calls for a White paper on the government's negotiating position. That is unlikely to happen both because of time constraints and the PM's stated position she will not give the UK position away at this stage.
The devolved governments will have no role in this process. However Nicola Sturgeon, the First Minister, has said she intends to give the Scottish Parliament a chance to consider the issue of triggering Article 50. There will be nothing for the Scottish Parliament to formally consider but no doubt an opportunity will be created to make their position clear. The SNP in Westminster have already said they will vote against Article 50 being triggered.
This may be the end of this particular case, but actions have been raised in Dublin and elsewhere seeking clarification on whether Article 50, once triggered can be revoked. This issue was a matter of concession in the Supreme Court and certain Justices referred to the fact this did not mean they legally accepted the merits of the concessions. Article 50 may have a long way to run yet, politically and legally.