Today, 24 January 2017, the Supreme Court handed down its Judgment in R (on the application of Miller and another) v Secretary of State for Exiting the European Union and the two Northern Irish references: McCord and Agnew. 

 

By a majority of 8 to 3 (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge in the majority with Lord Reed, Lord Carnwath and Lord Hughes dissenting), the Court dismissed the Secretary of State’s appeal and ruled that the UK Government could not serve a notice of the UK’s intention to leave the EU using prerogative powers, but must first be authorised to do so by an Act of Parliament. 

 

The First Interested Party and the Scottish and Welsh governments, which were represented by members of Brick Court, supported Ms Miller’s arguments in the Supreme Court.

 

As regards the devolution arguments made by Scotland and Wales, the Court held that, since it had reached the view that an Act of Parliament was needed, it was not strictly necessary to consider whether the devolution legislation led to the same result ([129]). It nonetheless found that, whilst the devolution legislation does not require the United Kingdom to remain a member of the EU, it would be “incongruous” if the statutory prohibition on the devolved legislatures acting contrary to EU law could be overridden “other than by statute” ([132]). The devolved nations’ arguments were therefore “certainly consistent” with the Court’s finding that an Act of Parliament was required ([132]).

 

The Court held that the Lord Advocate and the Counsel General for Wales were correct to acknowledge that the Sewel Convention was not legally enforceable and therefore did not give rise to a ‘veto’ ([150]). However, it went on to say that it recognised the “important role” that the Convention plays in facilitating relationships between the UK Parliament and the devolved legislatures. The Court did not consider it necessary to address the argument that, because leaving the EU would engage the Sewel Convention, it was unlikely that the government had a prerogative power to circumvent the Convention by bringing about the same result without primary legislation.