UK High Court Brexit Ruling: What Does It All Mean?

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Thursday, November 03, 2016 12.50PM / by Anne Perkins / The Guardian UK

NB: UK Government to appeal to supreme court against judgment that MPs rather than government must trigger article 50

The high court has decided the government does not have the power to trigger article 50 without consulting parliament, so what happens now? 


Can this stop Brexit?
Almost certainly not. But it does make the position much more confused. It risks driving an even bigger wedge between the leavers and the remainers, particularly since the leavers are likely to interpret this as one more desperate attempt by the Metropolitan liberal elite to thwart the will of the people (a suspicion that is going to shape the thinking of a lot of MPs).

Brexit to require parliamentary approval in setback for Theresa May
The government has said it will appeal the decision and it has permission to go straight to the supreme court, which has set aside time on 7 and 8 December. All 11 of the justices in position will have a chance to decide on a matter that goes to the heart of the UK’s unwritten constitution.

It is by no means certain that the supreme court will buy the high court’s thinking on this. In particular, it is likely to be extremely sensitive to public opinion about the role of the court, and whether it is making decisions that are more political than judicial.

How will parliament be consulted?
This is not clear at the moment. Is a straight yes or no vote - a kind of parliamentary referendum - enough? Or does there have to be legislation? If there has to be a whole new bill that goes to the Commons and Lords stage by stage, it will be a long and (for the government) dangerous fight. If it’s just yes or no, the vote could happen quickly - and probably within Theresa May’s previously stated timetable of triggering article 50 by the end of March.

How would MPs vote on article 50?
That’s not clear. Most MPs supported remain, but most represent constituencies that voted leave. This will go right to the heart of how the British constitution works: whether MPs should vote according to the wishes of their constituents or in their best judgement (leaving the electorate to decide whether to keep them in a job at the next election).

Having said that, leave was the majority view in nearly 70% of Labour seats for example, so it would probably be electoral suicide for MPs to rebel (and perhaps even abstain). Such a move could open the gates to Ukip.

Does it make an early general election more likely?
Yes, it must. That is one thing that MPs could possibly do to sort out the conflict between what they think is in the national interest and what their voters want. Although it is hard to think of a single Labour MP who would fancy the idea right now - and it would take a two-third majority in the Commons to trigger an early election under the Fixed Term Parliaments Act.

Parliament alone has the power to trigger Brexit by notifying Brussels of the UK’s intention to leave the European Union, the high court has ruled.

The judgment (pdf), delivered by the lord chief justice, Lord Thomas of Cwmgiedd, is likely to slow the pace of Britain’s departure from the EU and is a huge setback for Theresa May, who had insisted the government alone would decide when to trigger the process.

The lord chief justice said that “the most fundamental rule of the UK constitution is that parliament is sovereign”.

A government spokesman said that ministers would appeal to the supreme court against the decision. The hearing will take place on 7-8 December.

The lord chief justice said: “The court does not accept the argument put forward by the government. There is nothing in the 1972 European Communities Act to support it. In the judgment of the court the argument is contrary both to the language used by parliament in the 1972 act, and to the fundamental principles of the sovereignty of parliament and the absence of any entitlement on the part of the crown to change domestic law by the exercise of its prerogative powers.”

Unless overturned on appeal at the supreme court, the ruling threatens to plunge the government’s plans for Brexit into disarray as the process will have to be subject to full parliamentary control.

Government lawyers had argued that prerogative powers were a legitimate way to give effect “to the will of the people” who voted by a clear majority to leave the European Union in the June referendum.

But the lord chief justice declared: “The government does not have power under the crown’s prerogative to give notice pursuant to article 50 for the UK to withdraw from the European Union.”

The international trade secretary, Liam Fox, said the government was disappointed by the high court decision but added that “the government is determined to respect the result of the referendum”.

Ukip’s leader, Nigel Farage, said he was angered at the decision. “I worry that a betrayal may be near at hand … I now fear that every attempt will be made to block or delay the triggering of article 50. If this is so, they have no idea of the level of public anger they will provoke.”

But Nicky Morgan, the former education secretary, said she believed colleagues on all sides of the Commons would vote in favour of triggering Article 50 but said “democracy has been asserted.”

“I am also very confident in colleagues in parliament, we are very aware of how people voted, 17 million of them, to leave the EU, and I expect parliament will approve triggering of the Article 50 process,” she said. “It’s a question of law.”

She added: “We have a very important concept of the rule of law, the judges were very clear it was purely on a question of law. They are saying this is a fundamental constitutional issue and the government doesn’t have the power to trigger this process.”

Labour leader, Jeremy Corbyn, said: “This ruling underlines the need for the government to bring its negotiating terms to parliament without delay. Labour respects the decision of the British people to leave the European Union. But there must be transparency and accountability to parliament on the terms of Brexit.”

The Lib Dem leader, Tim Farron, said he was delighted by the ruling. “Given the strict two-year timetable of exiting the EU once article 50 is triggered, it is critical that the government now lay out their negotiating to parliament, before such a vote is held,” he said.

By handing responsibility for initiating Brexit over to MPs, the three senior judges – Lord Thomas; the master of the rolls, Sir Terence Etherton, and Lord Justice Sales – have ventured on to constitutionally untested ground.

The legal dispute focused on article 50 of the treaty on European Union, which states that any member state may leave “in accordance with its own constitutional requirements” – an undefined term that has allowed both sides to pursue rival interpretations.

The decision may undermine the prime minister’s authority in conducting negotiations with other EU states in the run-up to the UK’s withdrawal.

Gina Miller, the lead claimant in the case, said: “It was the right decision because we were dealing with the sovereignty of parliament. It was not about winning or losing. It was about what was right. Now we can move forward with legal certainty.”

Deir Dos Santos, a hairdresser and the other lead claimant, said: “Today’s judgment is a victory for everyone who believes in the supremacy of our parliament and the rule of law. I have never challenged the result of the referendum – in fact I voted for Brexit for the sole reason that I wanted power to be returned from Europe to the British parliament. But I did not think it was right for the government then just to bypass parliament and try to take away my legal rights without consulting parliament first.”

John Halford, the solicitor at Bindmans who represented the People’s Challenge group, said: “The oversight, control and democratic accountability needed for decisions on Brexit have to match the consequences of those decisions for UK citizens. That is why our constitution empowers parliament, not the government, to take decisions.”

John Shaw, chair of the organisation Fair Deal for Expats, said: ”This is superb news. We were convinced that our case was just. We’re delighted that the court agrees with us. There now needs to be a proper debate about how the rights of expats will be protected.”

The court took barely two and a half weeks to deliver its judgment. Lawyers for the government had argued that the prime minister has authority under the royal prerogative – its executive powers – to give formal notification.

The challengers maintained that parliamentary approval and legislation was required for such a fundamental change that would deprive millions of UK citizens of their legal rights. If ministers alone triggered Brexit they would be undermining the sovereignty of parliament, it was argued.

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