UK’s High Court Rules Prime Minister’s Government May Not Unilaterally Trigger Article 50

Since the United Kingdom’s June 23 referendum, the term “Brexit” has come to stand for much more than just the country’s prospective exit from the European Union. The idea has taken on a life of its own: as a moniker for self-determination; a metonym for the anti-establishment movements sweeping the developed world; and in the eyes of some journalists, a bellwether for our own contentious election. But much of this conversation about the significance of Brexit has sidestepped the question of whether Parliament has another say in the matter. As I wrote in my first Brexecution post, this is one of the central questions in the exiting process and a threshold question of British constitutional law: May the Prime Minister trigger the Brexecution process by unilaterally announcing the intention of the U.K. to exit the EU under Article 50 of the Treaty on the European Union (TEU)? This morning, the United Kingdom’s High Court of Justice handed down a long-awaited judgment on exactly this question, and the answer is: No.

Theresa May’s government has been vocal about a March 2017 invocation of Article 50; that’s the provision of the TEU that dicates the process of withdrawal from the EU, through the official declaration of the U.K.’s intention to exit the EU. But that timeline assumed that the government could make the announcement without consulting Parliament. Although the Government plans to appeal the High Court’s decision, a final “No” decision from the Supreme Court of the United Kingdom could have serious implications for the Brexecution process and, in turn, the world.

Below is a review of the High Court decision and its significance for Brexit.

The High Court Decision

The High Court addressed the following legal question: “whether, as a matter of constitutional law of the United Kingdom, the Crown—acting through the executive government of the day—is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union….”

The Court held “that the Secretary of State does not have the power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.”

The Court’s 32 page decision (U.K. judiciary summary here) is an intricate and thoughtful exegesis on the sovereignty of Parliament and the rights of individuals under the acts that gave effect to EU law in the U.K. domestic realm. In it, the High Court makes some important points about U.K. constitutional law:

• The court makes a decisive statement about the limitations of the executive power of the Crown: “ Primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers….The Crown has only those prerogative powers recognized by the common law and their exercise only produces legal effects within boundaries so recognized. Outside of those boundaries the Crown has no power to alter the law of the land, whether it be common law or contained in legislation. This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom.” A refresher: Prerogative powers are those executive reserved by the Crown and often exercised in foreign affairs. That said, it has been derogated over the years in favor of Parliamentary supremacy. The Court here characterized the prerogative as “the residue of legal authority left in the hands of the Crown.” Citing Lord Reid in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, the Court determined: “The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute.”

• The Crown may make treaties and otherwise transact in the international realm, but it “in doing so it does not and cannot change domestic law. It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights.”

• Parliamentary legislation, specifically the European Communities Act (ECA), was necessary to give effect to EU law in UK domestic law. This statute was a “statute of special constitutional significance” because it instituted sweeping changes to domestic law. Thus, “it [is] especially unlikely that Parliament intended to leave their continued existence in the hands of the Crown through the exercise of its prerogative powers. Parliament having taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again.”

• Without the European Union Referendum Act of 2015, the referendum about leaving the EU could not have happened. Within that act, Parliament did not give the Crown the authority to give notice of withdrawal from the EU under Article 50. The Court commented on the legal effect of the referendum: “The 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have appreciated that the referendum was intended only to be advisory as the result of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union.”

The Significance of the Decision for Brexit

• An Act of Parliament will likely need to be enacted before Article 50 is invoked. This probably isn’t the get-out-of-jail-free card for which the Remainers have fervently hoped. Analysts don’t think that this decision will reverse Brexit, as MPs don’t appear to want to overturn the referendum in the face of the consequences of overriding a democratic plebiscite. The important question now is how Brexit will happen and what Brexit will look like.

• The need for a Parliamentary vote on the issue may extend the invocation timeline past March 2017, thus prolonging the economic and social uncertainty presently throwing markets and whole governments into turmoil. Given that many MPs were in the “Remain” camp, the process risks protraction and complication. The Prime Minister’s spokesperson has stated that she does not intend for this decision to extend the deadline, but we all know that the best laid plans...

• May’s Government will now feel more pressure to produce comprehensive negotiating points and a plan to Parliament for scrutiny.

• Now that there will be a Parliamentary vote on the invocation of Article 50, it bears emphasizing that those 48% of voters who voted to remain in the European Union will get representation through a Parliamentary decision.

• It is an open question as to whether the Government can appeal the Supreme Court decision to the European Court of Justice - another fascinating question of international law.

• An affirmation of the High Court’s decision may exacerbate Parliament’s problems. Some commentators are predicting a Parliamentary general election in 2017.

• In the wake of this decision, the Bank of England has released increased projections for growth and inflation for this year and for 2017. It has also decided to hold interest rates.

Some sources predict that the Supreme Court will hear this case, consolidated with other potentially related cases into one appeal, in December of this year. Until then, many in the Remain camp will be nervously hoping for another bite at the Brexit apple.