Prime Minister Theresa May has announced that the UK will begin the formal Brexit negotiation process by the end of March 2017, by triggering Article 50 of the Lisbon Treaty.

Under the wording of Article 50 (read our article “What is Article 50?” here), the UK’s negotiators will have two years from the date of the notification to make the necessary arrangements for the UK to leave the European Union (EU). If those negotiations are not carried out within the two year period, the UK will leave the EU without the necessary arrangements in place. These negotiations can be extended, but only with the unanimous agreement of all the remaining member states; the unlikelihood of this happening means that the UK looks set to leave the EU by April 2019.

"Great Repeal Bill"

The Prime Minister, speaking at the Conservative Party Conference, has also indicated that she will introduce a “Great Repeal Bill” to repeal the European Communities Act 1972 (“the 1972 Act”), which legislated for the accession of the UK to the then European Economic Community (now the EU). This proposed timeframe means that the Prime Minister’s “agreed UK approach” towards Brexit, backed by all of the home nations, must be agreed by the end of March 2017 (read our article “Scotland, Brexit and Devolution” here).

Triggering Article 50

Since the UK’s decision to leave the EU, there has been much discussion as to the mechanics of triggering Article 50. The UK Government’s view is that this Act rests within its prerogative power and therefore does not require Parliamentary consent. This position is now the subject of a court case, known as R (Gina Miller and Deir Tozetti Dos Santos) v Secretary of State for Exiting the European Union, currently waiting to be heard in the High Court of England and Wales, in which the Government’s position is being challenged.

The constitutional matters raised by this court case are of major importance. The claimants argue that the UK Government will be unable to issue a declaration under Article 50 without having first been authorised to do so by the UK Parliament, by way of an Act of Parliament. They base this assertion on the fact, amongst others, that the UK is a parliamentary democracy and that the EU Referendum was advisory and not binding. Accordingly, the UK Parliament should ultimately decide on the timing and manner of triggering Article 50, and the implications of the Referendum on the rights of British citizens, flowing from their membership of the EU. They also claim that there is a conflict between the 1972 Act and the prerogative power which the Government intends to use in order to trigger Article 50. The case does not therefore dispute or seek to overturn the result of the EU Referendum, but seeks to challenge the manner in which it will be taken forward.

As well as the challenge to the manner and timing of the triggering of Article 50, a potential obstacle has arisen in the path of the Prime Minister’s proposed Great Repeal Bill. After the announcement that the Bill would be introduced, with the aim of repealing the 1972 Act, which legislated for the incorporation of EU law into UK domestic law, Michael Russell, the Scottish Government Minister for UK Negotiations on Scotland’s Place in Europe, indicated that such legislation – although a UK Act of Parliament – would require the consent of the Scottish Parliament.

Devolved Powers

Mr Russell pointed to the role of the so-called “Sewel Motion” or legislative consent motion, a constitutional convention under which the UK Parliament legislates on a matter devolved to the Scottish Parliament, but not without its consent. It is argued by Mr Russell, and others, that consent would be required in respect of legislation repealing the 1972 Act, as it would affect the extent of devolved powers. Whilst this might mean that the Scottish Parliament could not itself “veto” Article 50, it might very well, if a majority of its members wished to do so, be able to place an obstacle in the path of the UK Government’s attempts to repeal the 1972 Act.

There have been technical legal arguments as to whether or not such legislative consent could be refused, and indeed whether the UK Parliament would be bound to observe it if it were. Section 2 of the Scotland Act 2016 effectively enshrines the legislative consent motion in law, stating that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”. In its 2015 Report on what was still at that point the Scotland “Bill”, the House of Lords Select Committee on the Constitution warned that by placing convention in statute, the UK Government risked introducing a perception that the validity of laws passed by the UK Parliament would be justiciable if they contravened, or were arguably contravening, the legislative consent motion as set out in statute. The authors state that whilst the word “normally” makes it clear that the UK Parliament will still have the power to legislate for Scotland, there is now a clear risk that the courts might be drawn into an area which “has previously been within the jurisdiction of the UK Parliament alone, namely its competence to make law”.

It is difficult at this stage to tell whether or not a legislative consent motion will be sought from the Scottish Parliament and whether or not such consent will be given or refused. It is equally unclear as to what the High Court of England and Wales will make of the challenge to the manner in which Article 50 is to be triggered in the R (Gina Miller and Deir Tozetti Dos Santos) v Secretary of State for Exiting the European Union case. It is, however, clear that prior to March 2017 there may yet be further obstacles to be overcome before the Brexit process begins.