Brexit race against clock

Brexit race clock legal arguments
Brexit Secretary David Davis

Adam Shaw on the Brexit legal arguments that moved from the Supreme Court to the Commons and to the Irish High Court

Theresa May lost her government’s appeal to the Supreme Court over Article 50, meaning that MPs must be given a vote before the UK starts the process of leaving the European Union. A majority of eight to three among the Supreme Court judges voted to uphold the decision made by the High Court in November.

It ruled that Prime Minister Theresa May cannot trigger Article 50 of the Lisbon Treaty – the legal process for a member state exiting the EU – without an Act of Parliament. The majority of justices said failing to give Parliament a vote before triggering Brexit would be a “breach of constitutional principles stretching back many centuries”.

Now the Government must see a Bill passed through both the House of Commons and the House of Lords before it can begin negotiations. That started on Tuesday of this week.


Last year, Mrs May set a deadline of 31 March 2017 to notify the European Council of the UK’s intentions, giving just two months for the Bill to be passed. Though it expressed disappointment at the ruling, the Government had anticipated such a result and had prepared a draft Bill for such circumstances.

On the day of the ruling, 24 January, Brexit Secretary David Davis said: “This Government is determined to deliver on the decision taken by the people of the United Kingdom in the referendum granted to them by this House to leave the European Union.

Brexit race clock legal arguments

“So we will move swiftly to do just that. I can announce that we will shortly introduce legislation allowing the Government to move ahead with invoking Article 50.”

He explained that the deadline set out by Mrs May remains as it was and that he expects the Bill to be passed swiftly and without issue. “This will be a straightforward Bill. It is not about whether or not the UK should leave the European Union. That decision has already been made by the people of the UK.

“We will work with colleagues in both Houses to ensure this Bill is passed in good time for us to invoke Article 50 by the end of March this year, as my Rt Hon Friend the Prime Minister has set out.

“This timetable has already been supported by this House.”


Mr Davis added that the Government recognises the authority of the judiciary and, as a result, it will respect the decision made. But he also made it clear that he believes the people of Britain want things to move forward as quickly as possible.

“We are a law-abiding nation: indeed the UK is known the world over for the strength and independence of its judicial system. “We will build on this and our many other strengths as we leave the European Union.

“We will once again be a fully independent, sovereign country, free to make our own decisions,” he said. The concept of a decision having been made in June last year was supported by Mrs May, who agreed that the negotiating process should begin as soon as possible.

Brexit race clock legal arguments

“The House of Commons has voted overwhelmingly for us to get on with it,” she said. “And the overwhelming majority of people – however they voted – want us to get on with it too.”

Despite the Government’s confidence in having the Bill passed through both Houses without too much trouble, there has already been opposition voiced. The Bill, which has undergone two readings in the House of Commons, is just eight lines long. Liberal Democrat leader Tim Farron was among those who criticised the length of the Bill.

“This Bill is short and not sweet. Given how long he’s been campaigning to leave the EU, it’s amazing this 133 word bill took David Davis such a long time – that’s only five words a day since Brexit,” he said. “Take back control was a mantra of the leave campaign, but this government’s extreme reluctance to involve parliament in this process has instead been an affront to parliamentary sovereignty and democracy.

“With Labour totally confused over Brexit and the Conservatives determined to take us out of Europe and the Single Market at any cost, only the Liberal Democrats are fighting for full membership of the Single Market and a public vote on the final deal.”

Following the Supreme Court ruling, Labour leader Jeremy Corbyn said his party would not “frustrate” the process for invoking Article 50 but said he would push for amendments to the legislation that the Government has produced. He said: “Labour respects the result of the referendum and the will of the British people and will not frustrate the process for invoking Article 50.

“However, Labour will seek to amend the Article 50 Bill to prevent the Conservatives using Brexit to turn Britain into a bargain basement tax haven off the coast of Europe. “Labour will seek to build in the principles of full, tariff-free access to the single market and maintenance of workers’ rights and social and environmental protections.

“Labour is demanding a plan from the Government to ensure it is accountable to Parliament throughout the negotiations and a meaningful vote to ensure the final deal is given Parliamentary approval.”

The Bill is also likely to meet opposition in the House of Lords, where the Conservatives do not hold a majority and several peers have called for a second referendum.

Article 50

Article 50 of the Lisbon Treaty gives any member of the EU the right to leave the Union and sets out the process for achieving this. – Before the Treaty was signed in 2007, there was no legal way of exiting the EU. – Once triggered, the Article gives the leaving country two years to negotiate an exit deal. – It cannot be stopped or extended beyond the two year period once it has been set into motion, unless there is unanimous consent. – Any proposed deal must be approved by a ‘qualified majority’ of EU member states. – The deal can be vetoed by the European Parliament.

Key Brexit dates

  • 23 June 2016: UK votes to leave the European Union by a margin of 52-48 per cent.
  • 3 November 2016: High Court rules that Prime Minister Theresa May cannot invoke Article 50 without an Act of Parliament.
  • 24 January 2017: The Supreme Court upholds the decision made by the High Court following a Government appeal.
  • 31 March 2017: Deadline set by Mrs May for invoking Article 50 by notifying the European Council of the UK’s decision to leave the EU.
  • 30 September 2018: Date Michel Barnier, the EU’s chief Brexit negotiator wants to finalise the details of the divorce.
  • 31 March 2019: Date Mrs May wants to wrap up the Brexit negotiations.
  • May 2019 (?): The UK leaves the EU following ratification of the details of Brexit by other member states.

The Bill

A bill to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU. – Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

  • Power to notify withdrawal from the EU: (1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU. (2) This section has effect despite any provision ma de by or under the European Communities Act 1972 or any other enactment.
  • Short title This Act may be cited as the European Union (Notification of Withdrawal) Act 2017.

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