Three senior judges ruled on Thursday that the British government
does not have the authority to proceed with the UK’s exit from the European Union
without the approval of parliament. A legal challenge to the prime
minister’s power to trigger article 50, the clause that formally begins
Brexit, has proved controversial since being launched in the aftermath
of the EU referendum vote earlier this year.
The government said the decision to leave the EU was taken by the
public in the referendum on 23 June and that its executive powers, under
the royal prerogative, were sufficient to give notice to the EU on
behalf of the cabinet. But this was challenged by the claimants who said
that the referendum was merely consultative and only parliament had the
power to decide.
One of two main claimants who led the challenge, Gina Miller, a
businesswoman and philanthropist, said at the outset that the case was
not an attempt to overturn the referendum decision. Miller said the
intention was to “answer a fundamental legal question about the powers
that can be used by the prime minister and whether they can side-step
parliament”.
Can the ruling stop Brexit?
Almost certainly not. But it does make the position much more
confused. MPs are talking of the high court triggering a constitutional
crisis without any indication of how to get out of it.
It also risks driving an even bigger wedge between leavers and
remainers, particularly since the leavers are likely to interpret this
as one more desperate attempt by the Metropolitan liberal elite to
thwart the will of the people (a suspicion that is going to shape the
thinking of a lot of MPs).
The government has said it will appeal against the decision and it
has permission to go straight to the supreme court, which has set aside
time for what might be a four-day hearing starting on 7 December . All
11 of the justices in position will sit – the biggest court ever
assembled – to decide on a matter that goes to the heart of the UK’s
unwritten constitution.
The supreme court will be extremely sensitive to public opinion about
the role of the court, and whether it is making decisions that are more
political than judicial. However both sides, government as well as the
petitioners, accept that it is a proper matter for the courts to decide,
whatever the Brexiteers are shouting about declaring war on democracy.
Will the government appeal?
Although both Downing Street and Liam Fox, the international trade
secretary, have said it will, there are plenty of voices counselling
against. The high court’s ruling was comprehensively in favour of
parliament and against invoking Article 50
using prerogative powers. Appealing will just add to the delay. But
there are politics at play here that may yet make no 10 feel they must
fight all the way.
How will parliament be consulted?
The biggest question of all. Is a straight yes or no vote – a kind of
parliamentary referendum – enough? Technically, that is possible. The
risk – some say the likelihood – is that if government tried to bounce
parliament into that kind of snap judgement, it would be vulnerable to
another legal action.
Some sources are already indicating it will be legislation, as the
judges appear to suggest is necessary. The people who brought the case
argued that it would be constitutionally impossible to change the law of
Britain (as of course leaving the EU would, massively) without an act
of parliament.
If there has to be a whole new bill that goes to the Commons and
Lords stage by stage, it will be a long and (for the government)
dangerous fight. If it’s just yes or no, the vote could happen quickly -
and probably within Theresa May’s previously stated timetable of
triggering article 50 by the end of March.
How would MPs vote on article 50?
That’s not clear. Most MPs supported remain, but most represent
constituencies that voted leave. This will go right to the heart of how
the British constitution works: whether MPs should vote according to the
wishes of their constituents or in their best judgement (leaving the
electorate to decide whether to keep them in a job at the next
election).
Having said that, leave was the majority view in nearly 70% of Labour
seats for example, so it would probably be electoral suicide for the
party’s MPs to rebel (or perhaps even abstain). Such a move could open
the gates to Ukip.
Does it make an early general election more likely?
Yes, it must. That is one thing that MPs could possibly do to sort
out the conflict between what they think is in the national interest and
what their voters want. Although it is hard to think of a single Labour
MP who would fancy the idea right now - and it would take a two-thirds
majority in the Commons to trigger an early election under the Fixed
Term Parliaments Act.
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