Brexit turmoil as high court rules that MPs must have their say

Natasha Levanti
03 November 2016

Topics

Parliament alone has the power to trigger Brexit and article 50 cannot be triggered without MPs’ backing says the high court in a landmark decision. Natasha Levanti reports on what happens next and the implications for the Brexit process.

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 today. The decision has caused political uproar on all sides of the EU debate and thrown the Brexit process into fresh turmoil.

What was the High Court decision and what does it mean?

The High Court has today ruled that parliament alone has the power to trigger Brexit by notifying Brussels of the UK’s intention to leave the European Union. Announcing the court’s ruling, Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, said that “the most fundamental rule of the UK constitution is that parliament is sovereign”.

This case highlights a strong tension in UK law about where power ultimately resides – whether that be in the government, actions on behalf of the Crown or in the halls of parliament.

The claimants pursued the case due to UK citizens having certain rights as EU members due to the European Communities Act in 1972, while the government argued for permissions under “royal prerogative”. The key argument of the ruling may be found in point 94 of the entire high court ruling document, specifying 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”.

One of the things that is entirely unclear within this ruling is how would parliament be involved. Would it have a clear vote? Would there be a period of MPs and peers debating? Would new legislation be required? None of these questions are addressed by the court’s ruling and they are sure to be the cause of many strong reactions and further questions.

The spokesman for the European Commission president Jean-Claude Juncker has declined to comment on the UK high court decisions and in many ways such a comment is unnecessary with the UK political class seemingly going into political meltdown in the aftermath of the ruling.

What will happen next?

Leader of the Commons David Lidington made a brief statement following the court ruling while taking business questions. Pointing out that a judgement from the high court in Northern Ireland came to the opposite conclusion on this issue, Lidington said that this would need to go to a higher court and that it was the government’s intention to appeal to the supreme court.

There will be an oral statement on the issue next Monday. In a terse statement, Downing Street said: “The government is disappointed by the Court’s judgement. The country voted to leave the European Union in a referendum approved by Act of Parliament. And the government is determined to respect the result of the referendum. We will appeal this judgement.”

The government has been given permission to go straight to the supreme court, skipping the usual next step of the appeals process, with time already set aside on 7 and 8 December.

If the government loses its appeal, it will need to be decided what will parliamentary involvement in the Brexit decision look like. If it is simply put to a vote, this can occur quickly and Theresa May could still be able to meet the deadline she set to trigger article 50 by the end of March. However, if parliamentary involvement requires a new bill then this will be a long process, which will likely further drive a wedge between the different camps of opinion on the UK leaving the EU.

Given the further divisiveness that may be caused by parliamentary involvement prior to invoking article 50, MPs will find many difficulties due to conflicts between the voter mandates on Brexit they were given, the national interest and their own personal views. As such, if the government’s appeal of this decision fails, the likelihood of an early general election greatly increases.

Could the ruling prevent Brexit from occurring?

In the Commons on 3 November, Conservative MP Sir Edward Leigh pointedly asked Commons leader David Lidington what the government has got to fear from giving MPs a debate on a substantive motion on triggering article 50. The question was dodged, but many are asking similar questions.

Much of the uproar over the ruling is due to worries about the timeline of the UK’s departure from EU membership being deployed or prevented by MPs and peers. And, while few politicians have advocated this as a way to delay or avoid Brexit, such a fear clearly remains.

Suzanne Evans, a UKIP leadership candidate, took to Twitter to say “How dare these activist judges attempt to overturn our will? It’s a power grab and undermines democracy. Time we had the right to sack them.”

Leading Brexit campaigner Nigel Farage used the court ruling to threaten a potential UK political comeback. Speaking to BBC Radio Five Live, he said: “I’m not going to disappear. If come spring of 2019 we haven’t left the EU, then I would have to take up full-time campaigning again.”

Many are portraying the ruling as further support for politicians to represent the people’s interests fully by being consulted and being able to scrutinise the UK government’s actions related to not only the exit process, but also the UK’s future relationship with the EU.

Many politicians are making statements similar to those of Keir Starmer, the shadow Brexit secretary, who said on the BBC's World at One that although he accepts that Britain should leave the EU, parliament must be consulted on the terms of leaving, adding that the government cannot get away with refusing to reveal its negotiating stance.

Iain Duncan Smith, Conservative former work and pensions secretary, who campaigned for leave, told Sky News that though he does not think the courts have the right to tell the government what to do, he thinks that most MPs would vote to invoke article 50.

The Scottish first minister Nicola Sturgeon used today’s ruling as an opportunity to highlight the chaos in the UK government over the UK’s EU status. “We should remember that their refusal to allow a vote in the House of Commons is not some matter of high constitutional principle it is because they don’t have a coherent position and they know that if they take their case to the House of Commons that will be exposed,” she said. Sturgeon also said that she was considering joining the court challenge.

While it would be premature and foolhardy for anyone to claim that the high court’s decision will prevent the UK from leaving the EU, what is abundantly clear is that without clear UK constitutional parameters on such issues, many will remain divided as to the need for parliamentarians to be involved in deciding the process by which the UK leaves the EU.

Click here to view a summary of the ruling

Click here to download full details of the ruling.