Supreme Court Judgement: What does this mean for Wales?

Posted by Emyr Lewis on
Regional Senior Partner for Wales, Emyr Lewis:

The majority decision of the Supreme Court was that the UK Government cannot start the formal legal process of leaving the European Union ("triggering Article 50") without the authority of Parliament.  Boiled down to its core, this is because the effect will be to take away at one stroke an entire source of UK law, as well as the rights of individual citizens.  It is a long-standing rule that the Government cannot take away people's rights unless Parliament authorises that.  The Supreme Court has endorsed this, but also gone further, by making a stronger and more general point: "We cannot accept that a major change to UK constitutional arrangements can be achieved by a ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation."

The Welsh Government, through the Counsel General, Mick Antoniw, had intervened in the case, as had the law officers for Scotland and Northern Ireland.  There were two main strands to the Welsh Government's case. 

First of all they argued that because the Government of Wales Act 2006 binds both the Welsh Government and National Assembly to comply with EU law, the effect of triggering Article 50 would be to undo this part of the devolution settlement, and only Parliament could do that. 

The second argument was that a constitutional convention, called the Sewel convention, means that before changing the Welsh devolution settlement, the Assembly must normally be allowed to have its say and consent (as has recently happened with the Wales Bill).  Only Parliament (so the argument went) has the power to bypass this convention, and the UK Government should not be allowed to do so unless Parliament has authorised it.

So the Welsh Government's case was, in a sense, riding on the coat-tails of the main argument in the proceedings.  It was definitely not looking for a Welsh veto over triggering Article 50; rather it was adding weight to the argument that if you are going to make fundamental changes to the constitution, then that is a matter for Parliament, not Government, and extending this principle to the operation of the Sewel convention.  Similar arguments were put forward by the Scottish Government.  In fact both Welsh and Scottish governments expressly acknowledged in Court that there was no such veto.

The Supreme Court does not appear to have tackled these issues head on.  In a sense it didn't need to, because Wales and Scotland have won their cases.  They have got the result they asked for, a dismissal of the UK Government's appeal.  The sovereignty of Parliament has been restored.

The Supreme Court did, however, consider the question of whether the consent of the devolved legislatures is needed for triggering Article 50.  They did that because the Attorney General for Northern Ireland had referred to the Supreme Court the question whether, if primary legislation is needed in order for triggering Article 50, is the consent of the Northern Ireland Assembly required before the relevant legislation is enacted?  The Supreme Court came to the unsurprising conclusion that it is not, and neither is the consent of the Welsh Assembly or the Scottish Parliament.  This is unsurprising because constitutional conventions, as the Court explained, are not things which a Court can enforce.  In the case of Scotland and Northern Ireland, that was the case even though the convention is in legislation, as it will be for wales when the Wales Bill becomes law.

The implications of this judgment for Wales will be interesting.  The case itself leaves the devolution settlement pretty much untouched.  Nevertheless, the requirement to get an Act of Parliament before triggering Article 50 will raise again the question of whether the Assembly, and its counterparts in Scotland and Northern Ireland, should be consulted under the Sewel convention, because of the impact on Wales, Scotland and Northern Ireland.  As the Supreme Court emphasised, that is a political decision not a legal one.

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Emyr covers public and constitutional law as well as heavyweight commercial transactions in the ICT and media sectors, public procurement and State Aid.

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