This morning, the Supreme Court of the United Kingdom
released its judgment in Miller and Dos Santos v Secretary of
State for Exiting the European Union — the Brexit
Article 50 case. The U.K. government was appealing its November
2016 loss in the High Court.
In a majority decision, eight of the
Supreme Court's 11 judges dismissed the government's appeal
and upheld the High Court's decision that Prime Minister
Theresa May and her government do not have the power to invoke
Article 50 of the Lisbon Treaty, which would begin the process of
the U.K.'s exit from the European Union.
The Court confirmed that
Parliament's authorization is required before Brexit can be
triggered. The judges were unanimous in finding that the government
does not have to seek the consent of the devolved legislatures in
Scotland, Wales and Northern Ireland to the legislation that will
now need to be passed to give effect to Brexit.
Key aspects of the judgment
The Supreme Court's
press summary includes the following reasons for
The fact that withdrawal from the EU would remove
some existing domestic rights of U.K. residents renders it
impermissible for the government to withdraw from the EU Treaties
without prior Parliamentary authority.
It would have been open to Parliament when
enacting the European Communities Act 1972 (the ECA) to
authorize ministers to withdraw from the EU Treaties, but clear
words would have been required; not only are there no such clear
words, but the provisions of the ECA indicate that ministers do not
have such power.
The fact that ministers are accountable
to Parliament for their actions is no answer constitutionally, if
the power to act does not exist in the first place and where the
exercise of the power would be irrevocable and pre-empt any
Subsequent EU-related legislation and
events after 1972, including the introduction of Parliamentary
controls in relation to decisions made by U.K. ministers at EU
level relating to the competences of the EU or its decision-making
processes, but not to the giving of notice under Article 50(2), are
entirely consistent with an assumption by Parliament that no power
existed to withdraw from the treaties without a statute authorising
The Court's press summary is
available for download
here, while the full decision is available here.
What happens next?
The Supreme Court's decision is not
expected to delay the U.K.'s exit from the European Union.
Prime Minister May has committed to triggering Article 50 by the
end of March 2017. David Davis, Secretary of State for Exiting the
European Union, stated in the House of Commons today that the
government will introduce a bill within days.
Labour leader Jeremy Corbyn has
signalled that Labour MPs will be encouraged to support any
legislation that is put forward to trigger Article 50. Even
accounting for opposition, it is anticipated that the legislation
will pass in both Houses of Parliament.
We will start the morning looking at developments in the two years since the introduction of the Public Contracts Regulations 2015. We will go through some of the key themes and issues which have arisen on the new rules, including post-contract variations; the new Selection Questionnaire; incomplete submission of bids; and (of course) Brexit.
Next, our experts will look at procurement challenges/disputes, in particular issues such as standing to bring a claim, disclosure of documents and current trends, in light of recent case law including EnergySolutions EU Ltd v Nuclear Decommissioning Authority.
We will finish with a practical workshop where we will invite attendees to consider and discuss various public procurement issues. We will draw on experience from within the room to identify pragmatic solutions to sometimes very difficult situations.
The English Commercial Court has published two recent judgments of Mr Justice Popplewell in a single anonymised case concerning the removal of two arbitrators under section 24(1)(d)(i) of the Arbitration Act 1996.
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