What does the High Court ruling on Article 50 mean?

Theresa May breaking her word

by Jolyon Maugham / November 3, 2016 / Leave a comment

Gina Miller outside the High Court in London where three judges have ruled against the Prime Minister's decision to trigger Article 50 of the Lisbon Treaty of the Lisbon Treaty and start the UK's exit from the European Union without the prior authority of Parliament.

Gina Miller, lead claimant in the case, outside the High Court this morning ©Dominic Lipinski/PA Wire/PA Images

What denouement could be more appropriate to a campaign about Taking Back Control than a United Kingdom court ruling that, as a matter of United Kingdom constitutional law, MPs elected in the United Kingdom should decide whether, and under what conditions, to trigger Article 50?

That’s what the High Court today decided.

But what, in practice, does it mean?

In early December the Supreme Court will hear the government’s appeal. And it is possible that the government could change its position. It could advance a case—the exact opposite of that which it advanced before the High Court—that Article 50 is reversible. To do so would give the government better prospects of succeeding in its legal arguments but it would carry a heavy political cost. The government would, in effect, be saying that the referendum campaign is not over. It would be acknowledging we may not, after all, choose to leave the EU. Brexit would no longer mean Brexit. That, even the most ardent Remainer would acknowledge, is an unlikely stance for the government to take.

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Comments

Meuse
November 3, 2016 at 22:08
Spot on! This development will give time for political changes in the EU which could soften their position. UK negotiating position will be fortified by debate. Interpretation of Art 50 could be referred to ECJ.
Reply
Jeff Lewis
November 4, 2016 at 02:47
"The fact that, legally, the referendum was not binding does not have as a consequence that, politically, it can or should be ignored." I would argue that given what a mess this had caused, "politically" is the worst kind of argument. Nonetheless, given the huge lead the Tories have now, especially given the upcoming rigging of ridings to favour Tories even more, they CAN cost to reject the referendum. Should they? If after doing the job that should have been done in the first place, they decided brexit is a bad idea, then yes, they should. Members of parliament should never merely be puppets of the people... That's not how representational government works. If they approve brexit after having been shown that is a bad idea, and in fact it turns out to be a disaster, it is they who will take the blame.
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Simon Ferdinand
November 4, 2016 at 08:22
So after a referendum which was called, campaigned for and voted with scant regard to the consequences, the UK political scene has experienced a paradigm shift, from "Oh! Now what have we done?" to "Oh! Now what can we do?" How did this sorry state of affairs come about in the UK of all places?
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1. Montelieri
  November 6, 2016 at 18:46
  I think you need a general election. It's the only way to get out of the constitionnal mess. Then you will have to lay out a real plan for Brexit, which might take another year or two. In the mean time, the UK will be in international limbo. You will lose lots of credit, influence and appeal (you already have). But you might still be able to save your country as an entity and start again from there.
  Reply
Alyson
November 4, 2016 at 16:11
The Referendum was an opportunity for the British people to vote for the kind of Britain we want for our future. The British people would therefore also like to have the opportunity to vote on different visions for the future form that Brexit will take. We would appreciate the plans to be placed before us so that we can compare and contrast projected protectionist outcomes versus free trade outcomes. Labour's plans may offer preferable options in some areas, while Conservative plans might offer agreed partnership ideas for integrating a range of business plans. This is a scope of a mature democracy looking to plan for future generations in a changing world
Reply
John A.
November 5, 2016 at 15:27
If the vote had been 100% for Brexit then it would be entirely legitimate to say without qualification that the collective wish of the people was to withdraw from the European Union. If on the other hand the vote for Brexit had been exactly 50% it could be said in all honesty that the collective wish for withdrawal was zero. Between these two extremes, obviously, the magnitude or intensity of the collective wish for withdrawal, expressed as a percentage of completeness, ranges in linear fashion from zero to 100. When the vote for Brexit is 52%, the collective wish is only 4% of the real thing. If a government makes a crucial decision on the basis of such a magnitude its action is analogous to that of the examiner who passes a student on the basis of a final mark of 4%. Those in authority who wish to immerse themselves in legalistic doctrine, or even to put on black gowns and powdered wigs, must surely realize that a 52-48 vote is not in reality an expression of the popular will. It is much closer to being an expression of popular indecision. What a thoroughly honest government – or prime minister – will do in such circumstances is (i) carry on as before or (ii) undertake, with the authority granted by the electorate, to determine what course would be of most benefit to a world in which various catastrophes of truly great moment are looking over the horizon.
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NBeale
November 5, 2016 at 19:20
It seems very unlikely that MPs will try any kind of shennanigans on this matter. It seems likely that a very simple 1 or 2 clause bill will be passed by MPs - after all it never occurred to anyone when the EU Referendum Act 2015 was passed that if "A referendum is to be held on whether the United Kingdom should remain a member of the European Union." and the answer was Leave that the Government did not have the power to invoke Article 50. Cameron said he would invoke it immediately if there was a Leave vote and Crobyn also called on him to do so. This was plainly the intention of parliament in passing the Act and although Pannick has made a characteristyically clever argument to find a loophole, that is all that has happened and the loophole will be plugged. The Lords would be VERY foolish to seek to thwart the elected house in this matter and I don't think they will try. Labour and the Conservatives will both be whipping the matter to pass and there aren't enough bloody-minded Libdems and other peers to block it.
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E_WASHER_1
November 6, 2016 at 14:19
NBeale points out that, when it passed the EU Referendum Act 2015, Parliament must have realised that the logical conclusion of a Leave vote would be for the Government to invoke Article 50. Taken in isolation, that's a very good point. Taking a similarly legalistic view, though, could it not be argued that the referendum was merely advisory, certainly binding the government morally to carry out the verdict but not in law? Moreover - and again from a narrow legal perspective - can the royal prerogative or even a referendum override legislation passed by what is supposed to be a sovereign parliament? Having said that, I agree with NBeale that the Lords would be foolish to attempt to block Brexit as, for that matter, would the Commons. But it is surely right for a sovereign parliament to endorse the process and, as part of the debate, to give the government the formal support that must help a new Prime Minister in her discussions with our European partners.
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Julienne Salem
November 6, 2016 at 16:51
I think two factors that seem relevant are a) The message in the £9 million leaflet was clear - the wishes of the British people would be respected. If Parliament and the legal "profession" are so very clever and so holier-than-thou, why did they not they not launch a legal challenge before or at least as soon as the leaflet was delivered to every household in the country - including every member in the legal profession. This included judges who cannot now claim that the consequences of Brexit were not crystal clear well before the 23 June 16 vote. b) I do not recall either the legal profession bringing a legal challenge either i) During Heath's campaign to mislead and obfuscate the British people and most of Parliament prior to the joining the EEC. ii) During the referendum to remain members of the "Common Market" when the vast majority of those voting believed that they were voting to remain part of a a non-political customs union. The legal profession now on their high horses have shown themselves to be partisan. The cannot now claim that folk are politicizing the judiciery.
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Thomas Salter
November 7, 2016 at 10:36
If it was envisaged the government had the power to invoke Article 50 in the event of a Leave vote, without parliamentary consent, why did the government present an EU Referendum Act in 2015 that was explicitly advisory, rather than mandatory? That distinction is well understood in parliament even if it is not amongst the public. The Scottish referendum was made mandatory. The government failed to make that distinction clear during the campaign and is now paying the political price of that failure. The distinction is clear in Australia where 'referendum' are mandatory and 'plebiscites' advisory. Secondly the question asked of the public was whether the UK should leave the EU. It was not whether the UK should or should not seek to retain access to the Single Market as part of the European Economic Area while leaving the EU. They are not the same thing. For that important and different decision to be made democratically the government must at least gain parliamentary, and preferably popular approval.
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