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Brexit legal challenge succeeds

03 November 2016

The High Court has decided that the Government does not have prerogative powers to give the Article 50 notice terminate the UK’s membership of the EU.

The High Court has decided that the Government does not have prerogative powers to give the Article 50 notice terminate the UK’s membership of the EU. Here are links to the judgment and a summary: https://www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-state-for-exiting-the-european-union/

The decision was a single judgment of all three judges – the powerful combination of the Lord Chief Justice, Lord Thomas; the Master of the Rolls, Sir Terence Etherton; and Sales LJ. It appears that the Government will appeal to the Supreme Court, which has already allocated time to hear the case next month.

The judgment rests on the principle of the sovereignty of Parliament, which the Court decided overrides the royal prerogative in the EU area. Authority for the decision rests on various previous constitutional decisions, stretching back to 1610, in a case limiting the powers of King James I. The outcome is that Parliamentary authority is required to enable the notice to be given. That means an affirmative vote in both the House of Commons and the House of Lords.

The Referendum Act 2015, authorising this year’s referendum, did not include any provision stating that the result would be binding, nor authorising the Government to trigger Brexit by giving the Article 50 notice.

If the Supreme Court reverses this decision, will the applicants try to get a referral to the European Court? But that rests on a decision by the Supreme Court. And the Government might find it hard to see the UK’s decision in the referendum being determined by that Court.

But if the decision is upheld, it’s not presently clear what happens next. The Government may quickly decide to go for appropriate votes in the two Houses, but will they get them? Many members of the House of Commons may feel hesitant about ignoring the outcome of the referendum, and (in many cases) the votes of their own electorate, but others may feel there are other more fundamental considerations. And even if that gets through, will the House of Lords approve? The House of Commons can override the Lords, but only in the case of proposed legislation, suggesting that if the Government does need to obtain Parliamentary authority, it will do so via a Bill, not just a standalone vote.

Overriding the Lords is done by the Parliament Act 1911. Would the Government apply that procedure? That would mean a delay in triggering the notice for at least a year.

Might there be another referendum, this time expressed to be binding? But would that get through Parliament? Or maybe Theresa May will trigger another general election, promising to push through legislation to avoid losing votes to a revitalised UKIP under a returned Nigel Farage as leader?

There are suggestions that the vote should be against the terms proposed by the EU for Brexit. But the EU has said that there can be no negotiations on terms until it’s clear that the UK is indeed leaving. Which requires the Article 50 notice. Which requires Parliamentary authority. And in any event, if the EU knows that exit depends on the terms, why wouldn’t they impose as harsh terms as possible so as to persuade the UK that, actually, exit is not a good idea?

But if Parliament simply does not give the authority, what then? Some may feel the genie of Brexit is now out of the bottle, and (reasonably) harmonious membership of the EU would be hard to recapture.

And we still have the doubts expressed about whether the devolved areas of the UK need to give separate consent to Brexit.

All in all, we are set for some interesting times. Most of us will at least hope for some certainty to be achieved as quickly as possible so that decent economic growth has an opportunity to return against a stable background.

But the court decision was followed by a jump in the value of sterling, so at least there’s good news somewhere. Book your foreign holiday quickly!

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