Foreign Relations & International Law

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

Shannon Togawa Mercer
Thursday, November 3, 2016, 12:32 PM

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.

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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 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.

Shannon Togawa Mercer is a senior associate at WilmerHale. Her practice focuses on complex global data protection, privacy, and cybersecurity matters. Ms. Togawa Mercer has extensive experience counseling clients on cross border data protection and privacy compliance as well as cyber incident response. She has practiced in London and Washington D.C. and previously served as Managing Editor and Senior Editor at Lawfare. Ms. Togawa Mercer also served as National Security and Law associate at the Hoover Institution.

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