Article 50 Legal Challenge

A legal challenge has been successfully made against the Government’s plans to trigger Article 50 and begin the process of Brexit.  A High Court ruling has found that Parliamentary consent is required before the Article can be invoked.  The Government had argued that it did not need to seek Parliament’s approval, as it could exercise the power under Royal prerogative.  This gives the Government sole authority on foreign policy and agreeing treaties.  However, the High Court found that Britain’s EU membership is a result of the 1972 European Communities Act which is domestic law.  To undo this Act requires Parliamentary approval. 

The Government is to appeal the decision.  The case will go straight to the Supreme Court (the highest legal authority in the country).  It will hear the case on the 7^th and 8^th of December and may give its decision before Christmas or in early January.  The decision of the High Court was somewhat of a surprise, but it does not necessarily mean it will be overturned by the Supreme Court.

All this complicates the timing of Article 50, and hence the timetable for actual Brexit.  As we wrote last month, Theresa May had promised to start exit proceedings by the end of March 2017.  Should the Supreme Court overturn the High Court’s decision, this still looks possible.  However, if Parliament has to part of the process, then the timing becomes uncertain.  Going through the necessary legislative procedures could take some months.  The majority of MPs (and Peers) are also in the ‘Remain’ camp.  It is possible that they could just refuse to agree to Brexit.  Whilst most commentators believe this is unlikely, as it would go against the expressed wish of the British people, it should be remembered that Parliament can decide that public opinion is simply wrong – a historic example would be on the use of the death penalty.  Perhaps more likely is that pro-Europe MPs will attempt to attach clauses to the ‘Article 50 Bill’ to ensure a ‘soft’ rather than ‘hard’ Brexit.