The High Court rules that the British Government must seek Parliamentary approval for launching the Brexit process
On 3 November 2016, the English High Court delivered a landmark constitutional judgment ruling that the British Government cannot trigger the process of leaving the European Union by sending a notice of withdrawal under Article 50 of the Treaty on European Union. Instead, the High Court has ruled that the Government must obtain the approval of Parliament during the process of Brexit.
The High Court approached the case as being limited to testing the constitutional powers of the Government, i.e. to define the scope of prerogative powers (which are the Government’s executive powers) in the Brexit process.
The High Court interpreted the European Communities Act 1972 as a constitutional measure creating a series of rights enjoyed by citizens. It ruled that if there is an intention in a later Act of Parliament authorising the Government to vary the rights enjoyed by citizens under laws of the UK by exercising prerogative powers, then Parliament must clearly and expressly legislate for this result. It ruled that the Crown acting through the Government cannot use prerogative powers to alter domestic law and that its prerogative powers operate only in the area of international relations.
It further held that the European Communities Act 1972 was enacted clearly to prevent the Government from removing the rights given to citizens created by acts of Parliament through the exercise of prerogative powers. It concluded that “the Crown … has no prerogative power to effect a withdrawal from the relevant EU Treaties by giving notice under Article 50” of the EU treaty: the three judges giving their ruling (the Lord Chief Justice, the Master of the Rolls and a Lord Justice) stated that,
"in our judgment, the clear and necessary implication from the 1972 Act and other statute taken separately and cumulatively is that Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers."
They also ruled that “a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. No such language is used in the 2015 Referendum Act 2015.”
The British Government immediately announced that it would appeal the High Court ruling to the UK Supreme Court. Given the fundamental constitutional importance of the issues in the case, the appeal will be expedited and will be heard by the Supreme Court on 5 December 2016 by all 11 Supreme Court judges, the first time such a hearing has been held. The hearing is set to last four days, with Judgment expected late in December or early in January 2017.
If the Government loses the appeal and the UK Supreme Court confirms the High Court’s ruling, the result will be that the Government will need to obtain Parliamentary approval for the launch of the Brexit process. This will likely mean obtaining a majority vote in favour of submitting the Article 50 notice of withdrawal from the EU and/or being subject to the scrutiny of Parliamentary debate at each stage of the negotiation process. It would also mean that Parliament would need to approve any exit treaty with the EU, (something which the Government has already confirmed would be the case in any event).
The practical consequences of the ruling (if it is upheld by the UK Supreme Court on appeal) are numerous and far-reaching. The Prime Minister has previously declared her intention to send the Article 50 withdrawal notice by the end of March 2017, but if the Supreme Court confirms the High Court ruling, that process would almost certainly be delayed since it is difficult to see how the British Government would be able to present a plan for leaving the EU that is sufficiently clear and coherent for a Parliamentary vote by March 2017. Instead, the Government would be forced to explain in adequate detail the nature of its post-Brexit strategy for MPs to vote on the proposal, and it would also be subject to Parliamentary scrutiny at the successive stages of the process of negotiating an exit from the EU. This may result in the Brexit process being delayed beyond the British Government’s self-imposed timetable of an EU exit by early 2019 and also the next UK general election which must be held at the latest on 7 May 2020.
Given the very small working majority of the party currently in Government in the House of Commons, the risk of a negative parliamentary vote is significant. Commentators have speculated that this may force an early general election in 2017 to obtain a clear mandate for Brexit negotiations.
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