Insights and News /

03 November 2016

Government loses High Court battle: What does it mean for Brexit?

The Government has lost a High Court ruling over its power to invoke Article 50 this morning. A court challenge led by high profile investment manager Gina Miller has been heard over the last few weeks and was supported by the court at 10am this morning.

Debate has raged over whether the government can trigger Article 50 without the express consent of Parliament. The contention arises from the exit process as detailed in Article 50 of the Lisbon treaty. The article gives no formal mechanism for exit, rather, it leaves the exact exit mechanism to the “relevant constitutional requirements” of the member state leaving the union. This, therefore, causes a constitutional dispute over what the “relevant constitutional requirements” are for the United Kingdom in leaving a political union such as the EU. Clearly, there is no historical example in British law from which to establish a precedent and no written constitution to explicitly determine the relevant competencies of the executive and the legislative in this regard.

The Government’s positon:
The Government’s case rests on appealing to governmental power labelled “Royal Prerogative.” The government has exclusive competences which stem, constitutionally speaking, from the Head of State not from parliament. As the designated representative of Queen Elizabeth the Prime Minister has the constitutional right to execute this “Royal Prerogative” power and thus not seek the support of parliament over certain competences. One of the competences reserved for the Head of State, which falls under prerogative power, is foreign affairs. Royal Prerogative allows the Government, on the Sovereign’s behalf, to conduct foreign affairs and enter into international treaties without additional consent. Therefore, the government argues, it has the exclusive right to trigger Article 50.

The Challengers:
In contrast the Challengers argue that given the activation of Article 50 has a guillotine of two years, which would automatically force the UK out of the EU, it is not a competence under prerogative power. This is because, they argue, the effect of leaving the EU would undermine domestic legislation, namely the European Communities Act 1972, which gives primacy to EU law. To undermine this law would be to alter existing domestic legislation, which the Government does not have power to do. The High Court found this argument suitably strong to rule with the challengers this morning.

What next:
The Government has indicated that It will appeal this ruling to the Supreme Court where the final decision will be made sometime in December. However, this could start renewed activity in parliament. Since the vote Parliamentarians have found it hard to be seen to challenge the government position for fear of being seen to undermine the referendum result. This ruling will likely give them legal cover to express more aggressively their concerns around a “Hard Brexit.”

What this doesn’t mean:
Brexit is not dead. Instead the ability of parliament to express its consent in a vote will force the government to appease the will of parliament, perhaps by setting out its “negotiating objectives” before Article 50 is invoked. In order for Article 50 to be passed MP’s will likely demand the prioritisation of access to the Single Market and thus force the government away from its increasingly “Hard Brexit” stance. This court ruling, if maintained by the Supreme Court in December, will thus allow Parliament to assert its preference for a “Soft Brexit.”