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Brexit requires Act of Parliament

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The UK Supreme Court ruled this week by a majority that an Act of Parliament is required for the UK government to authorise the triggering of TEU article 50, in its highly anticipated judgment in R (on the application of Miller and another) v Secretary of state for exiting the European Union [2017] UKSC 5. However, on the related devolution issues, the court concluded unanimously that the devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU; and that the government was not legally obliged to consult the UK’s devolved legislatures on Brexit.

The Welsh government gave a broad welcome to the judgment, which it said ‘preserves and recognises the importance of the Sewel convention, whereby parliament will not normally legislate on areas devolved to Wales and devolved governments without their consent’. The overall aim of the Welsh government remains ‘to preserve single market access for business and to protect Welsh jobs and investment, along with the rights of workers’.

The Scottish government response was less positive, stating that ‘triggering article 50 will have profound effects on devolved matters and on the powers of the Scottish Parliament and the Scottish government’. Minister for UK negotiations on Scotland’s place in Europe, Michael Russell MSP, said that the UK government ‘must not renege’ on the constitutional requirement not to change those powers without the consent of the Scottish Parliament. The minister added: ‘Time is running out for the UK government to show how it intends to respect Scotland’s interests.’

Secretary of state for exiting the EU, David Davis, made a statement to the House of Commons on Tuesday in which he announced that legislation would be introduced this week to allow the government to move ahead with invoking article 50.

Davis said it would be a ‘straightforward Bill’, and that the government would work with colleagues in both Houses to ensure it passed in good time to invoke article 50 by the government’s preferred deadline of 31 March.

This legislation, he stressed, would be separate to the Great Repeal Bill, which is to be introduced later in 2017 to repeal the European Communities Act 1972. Parliament will scrutinise and debate the legislation.

Once article 50 is triggered, it would be possible for one of the other 27 member states to request a preliminary ruling from the Court of Justice for clarification, where there are particular concerns over the precise scope and impact of the article 50 process.