Brexit…A Never-Ending story

The High Court has ruled that the government does not have the power to trigger Article 50 - to start formal exit negotiations with the EU - without the approval of Parliament. What parliamentary approval means is unclear because the High Court did not specify.  So it could mean full legislation or a resolution, either by the House of Commons or from both houses. A resolution could be quicker and simpler, allowing the government to seek a very narrow resolution from MPs that grants approval for the triggering of Article 50. But using a narrow resolution could also be challenged in the courts, whereas full legislation should be watertight. Full legislation would be more complicated and time-consuming because it would require debates in the House of Commons and the House of Lords, allowing amendments to be tabled that could, for instance, limit the government's freedom in negotiations about the UK’s future relationship with the EU. 

In effect, the legal judgement—that will be appealed to the Supreme Court (but could it then be appealed to the European Court of Justice?)—reiterated the principle  laid down in 1610 during James I-Vi’s reign that the prerogative powers of the Crown—today exercised by the Prime Minister—do not have precedence over the powers of the legislature.  In the Case of Proclamations Sir Edward Coke stated ’the King hath no prerogative, but that which the law of the land allows him’  while the Bill of Rights 1688 confirmed this by stating that suspending and dispensing with ‘laws or the exercise of laws by regall authoritie as it hath been assumed and exercised of late is illegall’.  Parliamentary sovereignty has also been recognised in many leading cases as the highest constitutional authority.  The case centred round the argument that prerogative powers could not be used to invoke Article 50 because it would result in abolition of rights established in the 1972 European Communities Act without the legislation being repealed by Parliament.

Campaigners who brought the case insist it was about ‘process not politics’ and the High Court made clear that there’s was not a political judgement but the decision has huge implications, not just on the timing but on the terms of Brexit.  It lays Parliament open to criticism that it is trying to subvert the will of the people expressed in the referendum…ah, well the referendum was only advisory and not binding on Parliament…so we’ve listened to what you say but we have to act in the ‘national interest’ and the national interest dictates that we don’t really leave the EU.  It could also lead to a constitutional crisis between the elected Commons where most MPS will probably support Brexit—the question is not whether but what form it should take—and the unelected Lords that was largely in favour of Remain.   The potential for this increases the likelihood that the Prime Minister will call a General Election early next year.  There are certain advantages in doing so with the polls giving the Conservatives a clear victory as well as the potential for a Labour meltdown.  Assuming that she won, the Prime Minister could put invoking Article 50 into the manifesto that would head off problems with getting the necessary legislation through the Lords (it can’t vote against legislation contained in the manifesto). 

What happens now is far from clear.  An appeal will be held over five days in early December and if, as I suspect will be the case, what is an unequivocal High Court decision is upheld, the government will need to introduce legislation in early January 2017 (or even before Christmas) to seek parliamentary approval to invoke Article 50.  The High Court stated that once invoked Article 50 could not be revoked…Lord Kerr, the author of Article 50, had stated before the judgement that the process could be stopped if both parties agreed.  Though some MPs will certainly vote against invoking Article 50, having voted for a referendum by 6:1, it seems probable that any legislation will pass the Commons with relative ease so long as MPs are given some information about what the government’s plans are; the House of Lords is more problematic and prolonged resistance might result in the use of the Parliament Act to get the bill through.  If this was the case the planned timetable for leaving the EU would be thrown into question with Article 50 not invoked until much later in the year or even 2018.

Nigel Farage said that the ruling could be the start of a ‘deliberate wilful attempt’ to ‘betray voters’ and an attempt to ‘water down what people had voted for’.  Whether this is right or not, what we have seen today is a reassertion of the authority of the political elite at the expense of the popular will.  While we may still leave the EU, the decision about what ‘leaving the EU’ means will in practice l be what the political establishment decides and I am certain it will use the nebulous notion of ‘in the national interest’ to justify their decision.