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The Supreme Court's Brexit Judgment - A Constitutionally Significant Diversion

on Tuesday, 24 January 2017.

For constitutional lawyers, it's one of the most important decisions we have ever had on where power rests within Government.

For the media, it allows another round of Brexit speculation and political sparring. But for those of us who crave certainty, and a clear direction of travel between now and our eventual exit from the European Union, today's Supreme Court judgment that Parliament, and not the Prime Minister, must take the decision on whether to trigger Article 50 was something of a diversion.

A very important, constitutionally significant, diversion. A diversion which will allow voices outside of Cabinet to be heard more loudly in the debate about the nature of our relationship with the European Union. But when we eventually reach our Brexit destination, it is likely to have been something of a sideshow to the key question of the terms of our exit.

There will no doubt be a lively debate in Parliament. However, it seems most likely that a short Parliamentary Bill we be passed after much hand-wringing, authorising the Prime Minister to trigger Article 50. Indeed, in David Davies' address to Parliament today, he has promised "the most straightforward Bill possible" to trigger the process of withdrawal from the EU (although it isn't beyond the realms of possibility that Labour's calls for a White Paper on the matter may yet complicate matters).

What clarity is emerging as to the shape of Brexit?

It seems most likely that the Prime Minister will have a mandate to negotiate on the basis of the key principles which she set out in her landmark Brexit speech last week. So - aside from the process of how we get there - what clarity is emerging from Government about what our destination might look like? We set out below a few of the headline areas, and our observations on them:

  • An exit from the European single market. An end to free movement of people, goods, services and capital. A departure from the Customs Union and tariff-free access to the European market (at least on its current terms). An end to our access to current EU-negotiated trade deals with non-European countries.
  • The imposition of tariffs on trade with the European Union, unless a deal can be negotiated to remove (or limit) those tariffs. A natural corollary of this, the likely imposition of border controls.
  • A reliance on World Trade Organisation rules for those countries with whom we will no longer have trade deals through our membership of the EU (until such time as we agree replacement deals with them). However, even this will not be straightforward - there will be challenging negotiations for Government with the other 161 members of the WTO (including the European Union) in agreeing our WTO 'Schedule' setting out some of our tariffs and quotas.
  • Freedom to negotiate new trade deals, without the need to have regard to the competing interests of our European neighbours. The opportunity to agree trade deals which replace the EU-negotiated ones which we will no longer have access to, and to agree new deals with countries with which the EU has not secured a deal.
  • An end to the jurisdiction of the European Court of Justice in the UK, and flexibility for Government, over time, to amend or replace the European legislation to which we have been subject since 1972. Although it is worth noting that the effect of the legislation which will take us out of the European Union will be to formally adopt, as UK law, the vast majority of the European legislation to which we are currently subject.

So all very straightforward then?

These are the high-level principles - the elements that make good newspaper copy. Scratch the surface though, and it quickly becomes clear that implementing these principles - when applied to the many and varied aspects of our life that are touched by EU law - will be fiendishly difficult. International trade and immigration have the highest profile, but areas such as intellectual property, data protection, and procurement will require difficult negotiation and the consequences for how UK businesses operate in those areas could be profound. The direction of travel in those areas will become clearer over time, and we will keep you updated as we begin to see concrete proposals on those issues.

The position described by the Prime Minister in her speech last week was the first real salvo in the forthcoming negotiations - there will be plenty of cards on both sides of the negotiating table which are yet to be played. As much thought is likely to have been given to the message that it sent to Brussels in preparation for those negotiations as to the message it sent to the UK electorate, and our position will no doubt evolve over the next couple of years. However, while there will be other diversions, our likely destination is gradually becoming clearer than it was on 24 June.

For more information, please contact Ed Rimmell in our Employment Law team on 0117 314 5232.

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