Brexit: UK government loses article 50 appeal; IP impact minimal, say lawyers

The UK Supreme Court today ruled that the government cannot trigger article 50 of the Lisbon Treaty without an act of parliament.

Despite the big news,  is required to authorise Ministers to give notice of its intention to leave the EU. Iintellectual property lawyers have told WIPR that the judgment will have “little, if any, direct effect on IP”.

Today, January 24, Justice Lord Neuberger, the UK Supreme Court president, announced that the court had dismissed, the government’s appeal in a majority 8-3 decision, had dismissed the Secretary of State’s appeal.

The appeal came after the English High Court ruled in November last year that parliament must vote on whether the UK can trigger article 50, which triggers the negotiation process for leaving the EU of the Lisbon Treaty.

This ruling meant that the government could notannot trigger Brexit discussions on its own.

Today’s judgment— R (Miller) v Secretary of State for Exiting the EU—upheld the earlier ruling. In a summary of the the decision, the Justices justices held that an Act act of Parliament parliament is required to authorise ministers to give notice of the decision for the UK to withdraw from the EU.

In a live video link, Lord Neuberger said: “The issue in these proceedings has nothing to do with whether the UK should exit the EU ... The main issue is whether the government can trigger article 50 without a prior act of parliament”.”

An act of parliament creates a new law or changes an existing law, and is. An Act is a Bill approved by both the House of Commons and the House of Lords and formally agreed to by the reigning monarch. (known as Royal Assent).

Once implemented, an Act is law and applies to the UK as a whole or to specific areas of the country, according to parliament’s website.

Joel Smith, partner at law firm Herbert Smith Freehills, told WIPR that the decision: “Today’s, landmark decision by the Supreme Court confirms that an Act act of pParliament is required to authorise ministers to serve notice of its intent to leave the EU under Article 50.”

He added that it It confirms that the government may not invoke article 50do this unilaterally under the executive prerogative power. It may do this without formal consultation with the devolved administrations.

“However, it seems likely that a bill will be tabled by the Government government shortly, in order that it still may exercise article 50 by the end of March,” said Smith.

"This will commence the start of negotiations over a wide range of issues, including on ensuring continuing IP protection in the UK for EuropeanU Union trademarks and designs, and the UK’'s on-going role in the Unified Patent Court post-exit from the EU (assuming that the UK ratifies the UPC later this year)”,” he added.

Gordon Harris, partner at Gowling WLG, said: “The result will have little, if any, direct effect on IP. With the Labour Party vowing to support any bill to trigger article 50, this looks unlikely to stem the flow of the Brexit process materially, though the debate process may cause some delay.”

He explained that “Tthe current uncertainty stems from the “apparent discrepancy” between the actions being taken by the government in relation to the UPC  ...(commencing the ratification process and advertising for judges for the UK court), and Prime Minister Theresa the Prime Minister'sMay’s repeated assertion that the UK will no longer be subject to the jurisdiction of the CJEUCourt of Justice of the European Union.

David Rose, partner at law firm Mishcon de Reya, said: “On the assumption that Parliament votes in favour of invoking article 50, I don’t think it fundamentally changes anything much in terms of the IP landscape."

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