On 3rd November 2016 the UK High Court today ruled that the Government must seek Parliamentary approval before it gives notice to leave the European Union under Article 50.
The Government had contended that it could use Crown prerogative powers to trigger the Article 50 process.
Prerogative powers are traditionally exercised by the Monarch and do not arise from statute. These days these powers, usually associated with the conduct of foreign affairs or matters of national security, are exercised by ministers in accordance with legal principles on behalf of the Crown without the need for Parliamentary approval.
Both the Government and the main claimant in this case, Gina Miller, an investment manager, accepted that once served, an Article 50 notice was irrevocable. This is not expressly stated in the wording of Article 50.
It would have strengthened the Government’s case to contend that an Article 50 notice could be withdrawn once served. The main claimant had based her case on the irretrievable loss of EU law rights which flowed from the issue of an irrevocable Article 50 notice. However, given the importance to the Government of a quick decision in this case it was imperative to avoid any reference by the Court for a preliminary ruling on the interpretation of EU law to the Court of Justice of the European Union in Luxembourg. This was apart from any political embarrassment such a move would cause.
Under the European Communities Act 1972, the statute that incorporated EU law into UK domestic law, it argued that the Crown retained the prerogative power to leave the EU and that under the Act they had the power to choose whether EU law should continue to have effect in UK domestic law. Therefore they did not need to seek Parliamentary approval.
The Court rejected the Government’s argument stating that there was nothing in the 1972 Act that allowed the Government to change domestic law without Parliamentary approval.
The Government immediately announced its intention to appeal the High Court’s ruling.
So where does the High Court ruling leave the UK Government?
The Government has announced its intention to appeal the case. As the case is of fundamental importance it is likely that the case will be appealed directly to the UK Supreme Court and an early ruling sought, probably before the end of the year. So the Government has an opportunity to overturn the present adverse ruling.
If the current ruling is affirmed the Government will be forced to seek Parliamentary approval for the issue of an Article 50 notice. There would then be the need to secure approval of both Houses of Parliament to rush through emergency legislation. Whether the need for a Parliamentary vote will delay (and if so ,by how long), the triggering of Article 50, previously promised by the Government prior to March 2017, is yet to be seen.
However the need for Parliamentary approval is likely to open a Pandora’s box of political frustrations over the Brexit referendum. Indignation of the “Brexiteers” seeking to enforce the referendum result will be pitted against attempts by “Remainers” to question the scope of the Government’s mandate flowing from the referendum result.
One possible by-product of this unexpected Parliamentary scrutiny, however, might be that the Government will be forced to reveal more of their negotiating stance to win the legislature’s blessing. In particular assurances are likely to be sought on whether the UK will seek, or be able, to retain EU single market access without keeping free movement rights.
But at the end of the day political commentators suggest that there are likely to be sufficient votes from an unlikely mix of Conservative and Labour MPs, whose constituents voted for Brexit, to win a mandate for the Government to issue an Article 50 notice.
The successful passing of such legislation would, in reality, make Brexit unavoidable at that point, as it would have been accepted as a matter of English law that Article 50 was irrevocable. This is also consistent with the position of both the European Council and Commission.
The outcome of the UK’s trading position in March 2019 would then be a matter of negotiation and the terms of exit that the Government were able to negotiate between the EU and its more influential Member States. The Government’s next move and its option to appeal the ruling will be viewed closely.
However, in the unlikely event that the political pundits turn out to be wrong and Parliament fails to sanction the issue of an Article 50 notice, the UK will sail into the uncharted waters of a possible constitutional crisis which even the calling of a General Election is unlikely to cure.