The High Court in London has ruled that the UK government cannot bypass parliament in setting in motion the Brexit process.
Amid the unchartered waters the EU referendum has unleashed, a debate has raged over the respective powers of government, parliament, and the “will of the people” as expressed in the June vote.
The court ruling makes it clear that parliament’s say is paramount.
Why is this important?
The decision is definitely a setback – and has even been described as a shattering blow – to the British government’s Brexit plans.
It could jeopardise the timing of the Brexit process, and the government’s control over the nature of the deal being sought from the UK’s divorce from the European Union. In theory, the British parliament could actually block Brexit – most MPs were in favour of remaining in the EU – although this is thought unlikely given the referendum result.
A delay to the process could also have a knock-on effect in the rest of the EU, increasing uncertainty and perhaps disrupting the European Parliamentary elections in 2019.
However the government intends to appeal to the Supreme Court, raising the possibility that the ruling will be overturned.
Idea that Commons will NOT vote to trigger #Article50 is ridiculous. Qs are what criteria they add, when they trigger, & what Lords do.— Jon Worth (@jonworth) November 3, 2016
What the ruling says
The High Court’s three judges have ruled that the government cannot trigger Article 50 of the Lisbon Treaty – which sets in motion the process for withdrawal from the EU – without parliamentary approval.
“The most fundamental rule of the UK’s constitution is that parliament is sovereign and can make and unmake any law it chooses,” said Lord Chief Justice John Thomas.
The Prime Minister Theresa May wants the government to be able to decide the matter on its own, using royal prerogative powers.
“The court does not accept the argument put forward by the government,” England’s most senior judge added. “We decide that the government does not have the power… to give notice pursuant to Article 50 for the UK to withdraw from the European Union.”
However the judges did not spell out what action the government needed to take. They did not say whether a new law would be needed – something which could face opposition and amendments from both houses of parliament. But the ruling has been interpreted as meaning that an Act of Parliament will be necessary.
Summary of high court decision against government pic.twitter.com/9rF7KnszcQ— Faisal Islam (@faisalislam) November 3, 2016
How they have reacted
Claimants in the court case have welcomed the ruling, as have many who campaigned for the United Kingdom to remain in the European Union. Among them are those who accept that Brexit should happen given the referendum result – but who argue that parliament should have a decisive say.
This decision by the high court to give MPs a vote on Art. 50 is about giving Parliament a “meaningful say” in #Brexit says
patmcfaddenmp</a> <a href="https://t.co/3Vbu5ZVXJn">pic.twitter.com/3Vbu5ZVXJn</a></p>— Open Britain (Open_Britain) November 3, 2016
The opposition Labour Party’s Brexit spokesman Sir Keir Starmer welcomed the decision, saying the prime minister had been trying to sideline parliament – which the court had now determined was sovereign.
Political leaders in Scotland and Northern Ireland – which both voted to stay in the EU – said the legal blow to the government had exposed flaws in its approach to Brexit.
“Their refusal to allow a vote in the House of Commons is not because of some matter of high constitutional principle, it is because they don’t have a coherent position,” said Scotland’s First Minister Nicola Sturgeon.
The government has said it intends to appeal against the decision before the Supreme Court. A Downing Street spokeswoman said it would not change the timetable for Brexit: “our plans remain to invoke Article 50 by the end of March,” she said.
The International Trade Secretary Liam Fox told the House of Commons that the government was “disappointed” but “remained determined to respect the result of the referendum”.
Other leading campaigners for the UK to leave the European Union have expressed dismay and outrage at the decision.
“It’s a bad day for democracy,” Conservative MP Dominic Raab told Sky News. Describing the ruling as “opaque and nebulous”, he said it would give parliament “a veto over the will of the British people, and I think that’s not on”.
The leader of the anti-EU party UKIP, Nigel Farage, said he feared that “a betrayal may be near at hand” of the 17 million Britons who had voted to leave the EU.
I now fear every attempt will be made to block or delay triggering Article 50. They have no idea level of public anger they will provoke.— Nigel Farage (@Nigel_Farage) November 3, 2016
Conceding that the ruling was “constitutionally correct” in that the referendum was advisory, the MEP said it was wrong in terms of political morality – and that at the very least it might lead to Brexit being watered down to – in his words, a “half Brexit”.
Some commentators see an irony in the hostility among the pro-Brexit camp to the court’s confirmation of parliament’s supremacy over government. “Almost their entire campaign to get us out of the EU was that British courts and Westminster must be sovereign,” ITV’s political editor Robert Peston posted on Facebook.
Where does Brexit go now?
The next important legal step is the government’s appeal, which is expected to be heard in early December. The government says it can still press ahead with the March timetable even if it loses the case.
If the Brexit process is put to a parliamentary vote, it has been pointed out that even though a large majority of elected representatives backed the Remain campaign, most represent constituencies that voted for Brexit.
It is thought unlikely that they would block Article 50 altogether. Labour has said that after the ruling it will still push for Britain to leave the EU. However at least one MP has said he would follow the majority view of his constituents – who wanted to remain in the EU.
The ruling means there is a danger for the government that its Brexit plans get bogged down in parliamentary procedure. Both elected and unelected chambers would be sure to want to give the matter the utmost scrutiny.
“Best case remains that the UK will still trigger Article 50, but it could potentially see slippage from the originally stated March deadline,” James Knightly, an economist at ING Bank, told Bloomberg.
“When we decide to have a referendum, we give back to the people that sovereignty – they decide the issue.”
UKLabour</a>'s Frank Field. <a href="https://twitter.com/hashtag/Brexit?src=hash">#Brexit</a> <a href="https://t.co/txsn60BEYc">pic.twitter.com/txsn60BEYc</a></p>— LEAVE.EU (LeaveEUOfficial) November 3, 2016
An ominous sign for the government is that the opposition – if allowed a vote in parliament – does not intend to restrict its interrogations to the question of timing, but to the type of Brexit deal the government is seeking.
Labour’s Brexit spokesman Sir Keir Starmer told BBC Radio:
“I really don’t think that in light of this ruling the government can get away with refusing to disclose its negotiating stance. I think MPs across the house will want to know ‘what are the terms on which you’re going to negotiate?’. We have to know that.”
For the government, that risks throwing out into the open the sort of details it may otherwise want to keep confidential before the hard bargaining begins with the EU.
A lengthy parliamentary process followed by a vote is also likely to expose the divisions over the nature of Brexit – crudely described as the ‘hard’ versus ‘soft’ options – potentially compromising or even derailing the government’s plans.