The Supreme Court has today ruled that an Act of the UK Parliament is required to approve the giving of notification required under Article 50 of the Treaty on the European Union. In other words, the UK Government cannot simply use the Royal Prerogative to give this notification.
However, the Supreme Court held that there was no legal requirement for the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly also to consent to this legislation, under what is commonly known as the Sewel Convention or the Legislative Consent Convention. The Court stressed that the Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures, but ruled that it was not the role of the judiciary to police the scope of such constitutional conventions, or how they operate. The Court went on to hold that this conclusion is not affected by the fact that part of the Sewel Convention is now entrenched in statute for Scotland, in the Scotland Act 2016 (and will be for Wales, if the Wales Bill currently going through its final stages through Parliament is passed).
The Court was not giving the UK Government and Parliament licence to ignore the Sewel Convention. Simply, it is saying that the courts cannot decide disputes about whether it has been applied correctly. Any sanction for failure to observe it has to be political, rather than legal. Notification under Article 50 formally triggers the start of the process of the UK leaving the EU – negotiations on the terms of the exit can begin once notification has been given. The Prime Minister has signalled her intention of giving the notification by the end of March 2017, although this timetable will now be subject to the Parliamentary process.
The Welsh Government’s Counsel General will make a statement in Plenary today on the outcomes of the judgement. Members will be given the opportunity question the Counsel General on his statement.
Key issues likely to be discussed in Plenary include:
- How the Welsh Government plans to ensure that the interests of Wales are protected in the Brexit process.
- What type of role the Assembly will have in scrutinising the negotiations and if there is likely to be a role for the Assembly in approving the final deal on the UK’s exit from the EU.
- Whether the current inter-governmental structures in place in the UK are sufficient to enable the full engagement of the devolved administrations.
- If a common negotiation position is likely to be reached between the devolved administrations and the UK Government prior to Article 50 being triggered.
Article by Elisabeth Jones, National Assembly for Wales – Chief Legal Adviser.