Supreme Court says Brexit must be triggered by Parliament
In a landmark judgment, the Supreme Court has ruled that the government cannot unilaterally trigger article 50 of the Lisbon Treaty. Rather, article 50 can only be lawfully triggered via our sovereign parliament.
In a majority judgment, 8 of the 11 Supreme Court judges upheld the High Court’s ruling that an Act of Parliament is required to authorise ministers to give notice of the decision of the UK to withdraw from the European Union.
Giving a summary of the judgment, the President of the Supreme Court, Lord Neuberger stated:
‘The government cannot trigger article 50 without an Act of Parliament authorising it to do so…. Whenever EU institutions make new laws, those new laws become part of UK law… an independent source of law until Parliament decides otherwise. Therefore, when the UK withdraws from the EU treaties, a source of UK law would be cut off. Further, certain rights enjoyed by UK citizens would be changed. Therefore, the government cannot trigger article 50 without Parliament authorising that course.’
Making it clear that the Supreme Court ruling had nothing to do with political issues such as the merits of the decision to withdraw, the timetable and terms of so doing or the details of any future relationship between the UK and the EU, Lord Neuberger stated:
‘The referendum is of great political significance but the Act of Parliament which established it did not say what should happen as a result. So any change in the law to give effect to the referendum must be made in the only way permitted by the UK constitution, namely by an Act of Parliament. To proceed otherwise would be a breach of settled constitutional principles stretching back many centuries.’
For a summary of the background to the case, see: https://www.gmb-southern.org.uk/update-what-are-the-next-steps-for-brexit/
The judgment can be found at: https://www.supremecourt.uk/cases/uksc-2016-0196.html
The government must now present a bill to Parliament regarding article 50, which will then be subject to parliamentary process; requiring approval in the House of Commons and the House of Lords before it can take effect.
Focus should now, therefore, shift to the wording and timetable of any bill and the parliamentary process.
However, typically, Tory party strategy regarding the Supreme Court ruling is already attempting to deflect attention away from the government’s monumental defeat and away from the detail of Brexit.
Paul Maloney, Regional Secretary of GMB, Southern Region, commented saying,
‘Working men and women in the UK are being left in the dark as to how Brexit will affect their terms and conditions of employment.
Questions about wages, working time, maternity rights and other employment law protections are fundamental to working families who have already been squeezed by the government’s austerity agenda.
Now that the Supreme Court has ruled against the Tory party, we welcome the parliamentary process as a means of scrutiny into the government’s proposals regarding Brexit.’
The continuing lack of transparency on the part of the government was highlighted in a letter from Emily Thornberry and Keir Starmer (Shadow Cabinet Secretaries) to David Davis (Brexit Secretary), which contained 170 questions saying,
“If you are able to provide satisfactory answers to all these questions, just one per day from tomorrow until 31 March next year, it might give some confidence that the Government is entering the Article 50 negotiations with a clear plan.
If not, it will reinforce the sense that the Government is instead blundering into this process without a clear endgame in mind, repeating exactly the same mistake that the previous Prime Minister made with his ‘renegotiation’ of Britain’s EU membership last year: working to an artificial, self-imposed timetable; with a flawed Plan A of what he wanted to achieve; and no Plan B whatsoever….’
Of crucial importance to GMB members were the key questions raised regarding rights of workers including:
53. Will the government guarantee that all existing employment rights underpinned by EU legislation will not just be fully transposed into UK law through the ‘Great Repeal Bill’, where they are not already, but will also be retained for the long-term, with none of the ‘watering down’ at the expense of workers for which some business groups and Leave campaigners have previously lobbied (e.g. in relation to TUPE rights, the Working Time Directive, health and safety regulations, and the rights of part-time and agency workers)?
54. Will the government guarantee that no existing employment rights will be put ‘on the table’ when it comes to: (i) negotiating trade deals with third countries in the future; or (ii) seeking to incentivise multinational companies to invest or become/remain headquartered in the UK?
55. Will the government commit to enshrine in law those protections for workers that currently derive not from EU legislation, but from judgments of the European Court of Justice (ECJ), for example their recent decision that the calculation of workers’ entitlement to holiday pay should include earnings from bonuses, commission and overtime payments?
56. Will the government give specific guarantees that employment rights for women that derive from EU legislation and ECJ rulings in relation to equal pay, pregnancy, maternity and protection against discrimination will be retained in full for the long-term after Britain’s exit from the EU?
57. Will the government rule out any plans to revive the proposal contained in Adrian Beecroft’s 2011 ‘Report on Employment Law’ to place a cap on the level of compensation that can be claimed in cases of workplace discrimination, which would currently be disallowed under EU law?
58. Will the government undertake to match any future, post-Brexit proposals agreed by the European Union to extend employment rights, to ensure that individuals working in Britain can enjoy all the same protections as workers employed in other European countries?’
The above questions remain unanswered and of considerable concern is the fact that the Tory government has an abysmal record regarding the rights of workers. Once European employment law protections have been removed, the situation will only be exacerbated.
We will aim to provide updates on the situation regarding Brexit. In the meantime, please contact your local GMB representative if you have any issues arising out of your employment.