Today’s landmark decision by the High Court – that the UK government does not have the power to trigger Article 50 without a Parliamentary vote – could have profound consequences on the terms and timescales of the UK’s exit from the EU as well as creating wider implications for the UK constitution.
The Court accepted the legal challenge from fund manager Gina Miller, who argued that the invoking of Article 50 was not within the Government’s “prerogative powers” and that it must require an act of Parliament before it begins the formal process of leaving the EU. Following the judgement, the Government confirmed that it will appeal the decision in the Supreme Court.
While this High Court ruling is unlikely to prevent Brexit from taking place, it will almost certainly add additional levels of complexity and uncertainty to the process:
- Firstly, it could affect timescales. Number 10 have stated that, despite this ruling, it still intends to trigger Article 50 by March 2017 (as previously promised by the Prime Minister). This, however, will be a significant challenge. The appeal in the Supreme Court may be heard as early as December, but if the Government is unsuccessful, and the High Court ruling is upheld, then it will be required to pass legislation through both houses of Parliament, which is unlikely to be a straightforward and could become protracted – causing significant delay.
- Secondly, as well as time-consuming, the process of Parliamentary scrutiny is likely to be very obstructive to the Government’s negotiating strategy. The Government had been keen to keep its position under wraps and not provide a “running commentary” to avoid revealing its hand ahead of talks. This approach would be virtually impossible once MPs and Peers are allowed to vote on a strategy. Parliamentarians are likely to seek to change the Government’s priorities – for instance, proponents of a ‘Soft-Brexit’ could table motions to the Bill that commit the Government to remain in the Single Market. The Prime Minister will seek to avoid this and keep any votes as straightforward as possible (ie framing any votes as a binary yes/no on Article 50 and positioning any attempt to prevent the Government’s position as “thwarting the will of the British people”). Managing the legislative process will be a major political challenge for Government.
Significant questions about the position of both main political parties would arise if Parliament was given a role in determining the negotiating position. The Conservative Party is split on an approach to Brexit, with potentially enough MPs opposed to a “Hard-Brexit” to undermine a Government majority in a vote. While the Labour Party lacks a coherent position on a variety of aspects of the UK’s exit from the EU – with notable differences between its leader Jeremy Corbyn and the wider PLP.
One outcome could be that Theresa May decides she requires a new mandate to trigger Article 50 and overcome Parliamentary obstacles, a ‘Brexit election’ effectively a damaging re-run of the referendum. Bookies have already shortened the odds for an early general election in 2017 and there are many Conservatives who would like her to do so, given the Party’s substantial lead in the polls. Such an outcome is far from certain, however. As well as logistically challenging, an early election could be extremely divisive for her own Party with local splits causing all sorts of unknown constituency-level outcomes. This will also generate further uncertainty for businesses during a time when they are already facing considerable challenges. Given the current state of UK politics, the consequences of an early election could be profound – it could even go as far as signalling a major realignment in UK politics.