James Bogle in the BREXIT case in the UK Supreme Court

December 5, 6, 7 and 8, 2016 and January 24, 2017

Civil team leader, James Bogle, was instructed in the BREXIT case, acting as junior counsel for one of the intervenors (the 5th Intervenor) granted permission by the Supreme Court to make submissions. This was probably one of the main constitutional cases in the courts for the last 50 years, involving issues of constitutional law, European Union law, administrative law, the Treaty of the European Union (TEU), devolution issues, Ministers’ powers and duties, the National Assembly for Wales, the Northern Ireland Assembly, the powers of the Executive and of Parliament and the use of the Prerogative powers, the place of referenda, the Scottish Parliament, the Sewel convention and UK withdrawal from the European Union (EU). Lords Reed, Carnwath and Hughes gave dissenting opinions as regards the need for an Act of Parliament before giving notice under article 50(2) of the TEU, adopting a number of the arguments advanced by the 5th Intervenors.

R (Miller and anor) v Secretary of State for Exiting the European Union, UK Supreme Court, [2017] UKSC 5 (Lord Neuberger, President, Lady Hale, Deputy President, Lords Mance, Kerr, Clarke, Wilson, Sumption, Reed, Carnwath , Hughes and Hodge): The “BREXIT case”. The Supreme Court decided that the Government did not have power under the Crown’s prerogative to give notice pursuant to TEU article 50(2) for the UK to withdraw from the EU. An Act of Parliament was required. The secretary of state appealed against a decision that the Government could not give notice of the UK’s withdrawal from the EU pursuant to TEU article 50(2) without Parliamentary approval. Devolution questions were raised on a further appeal against a decision that the constitutional arrangements for Northern Ireland did not affect the Government’s power to give notice under article 50(2). The appeals were dismissed (Lords Reed, Carnwath and Hughes dissenting) and the devolution questions were answered.