Brexit Article 50 – High Court Ruling

Today, the High Court rejected the government’s argument that it can trigger Article 50 without parliamentary authority.  It is unlikely this will stop Brexit, but it might delay it by a month or two. The Prime Minister had said she will trigger Article 50 by March next year, but the court ruling has successfully challenged her authority to decide when to invoke Article 50.

The court case has the ability to affect ordinary businesses across the UK, because it piles uncertainty on top of uncertainty.  Most had achieved a certain level of comfort with the admittedly vague two year timetable, but it is no longer clear when this two year period starts.

The case is one of the most important constitutional cases in a decade.  A group of private individuals brought a challenge in the High Court against the government’s Department for Exiting the European Union.  The ground for the action was the fact that the act of parliament which provided for the referendum on EU membership did not make the vote legally binding, although convention provides that Parliament does not obstruct a referendum result (see article).  The process for leaving the EU is set out in Article 50 of the Lisbon Treaty, as we all know, and provides for a maximum of two years of negotiations on the terms of exit.

Brexit Article 50 - High Court Ruling reactionThe case revolved around royal prerogative powers, previously held by monarchs but now held by the monarch’s ministers.  The government’s case was that these powers allow the Prime Minister to trigger Article 50 without a parliament vote.  The government did say that parliament would probably have a vote on whether the deal is acceptable or not after it has been negotiated, but not on the question of when to exit.

The government, having lost the first argument, has now appealed to the Supreme Court, with a hearing likely in December.  The separate regional governments in the UK, such as Scotland’s, are also likely to seize the opportunity to bring actions or otherwise become involved.

There is even a remote possibility that this could halt the process of exit.  However, even if the government loses its appeal, MPs will find themselves in an awkward position if it comes to a vote.  Parliament was majorly in favour of remaining in the EU, while the voting public were in favour of leaving.  Some have speculated that if voting were done on a constituency basis, it is possible that the Remain vote would have carried, but there is no machinery to verify this and MPs are therefore arguably obliged to vote in favour of the referendum result.

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Nicolas Groffman
Partner, Head of International
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