Briefing: The High Court and Brexit

Yesterday, the High Court ruled that the government needed Parliamentary approval to trigger Article 50 which will start the process of the UK leaving the European Union. Some newspapers have said that this has triggered a constitutional crisis.  So what are the constitutional issues on the case? Read our handy guide to find out.

Why was there a court case?

A case was brought before the court to challenge the process the government wanted to use to trigger leave the EU. The case was not about whether or not the UK should leave the EU but about the legal process for how we do it.  

The government  wanted to trigger Article 50 (see below) without consulting parliament, using an ancient power called the royal prerogative. The people who took the government to court argued that Parliament must be consulted before Article 50 can be triggered. The judges agreed with them, so a bill will now go through Parliament which will be voted on in both the House of Commons and the House of Lords.

What does Article 50 say about the process for leaving the EU?

Article 50 is the clause of the Lisbon Treaty which explains how the UK can leave the EU. It states that any Member State may leave the European Union in accordance with its own “constitutional requirements”.

The court case was about whether using royal prerogative was in accordance with the UK’s constitutional requirements. The judges said it isn’t and that Parliament must vote to trigger article 50.

What are the UK’s constitutional requirements?

This is a difficult question. The UK has no written constitution that we can refer to but it does have a series of laws, statutes and precedents that make up UK constitutional law.

A key principle of UK constitutional law is that Parliament is sovereign. This means that only Parliament has the power to make laws and give or take away citizen’s rights. While we are members of the EU, even European legislation is ultimately subject to UK Parliamentary approval.

However, to complicate things, there are also some powers held by government ministers known as Royal Prerogative powers.

What are Royal Prerogative powers?

Royal prerogative powers are left over from when England was governed by a monarch. Established under Henry VIII, these powers used to be wide reaching but as England evolved into a democracy they were gradually diminished. While many Royal Prerogative powers still exist they are mainly delegated to government ministers.

The issue of Royal Prerogative powers is important because they are powers that the government can decide to use without consulting anyone else.  These powers are not scrutinised and can’t be amended or changed.

Remaining Royal Prerogative powers include: the granting of honours, the appointment as dismissal of ministers, the ownership of swans and, most importantly for this case, the power to make and break treaties.

The government argued that as there was no law telling them they couldn’t use Prerogative powers to trigger article 50 they did not need to consult Parliament. The court disagreed.

So why can’t the government use royal prerogative in this case?

As discussed earlier, only Parliament has the power to give and take away citizen’s rights.

Triggering Article 50 will start the process to leave the EU which will have a direct effect on our rights such as:

  • Workers rights
  • The right to live and work in other EU Member States
  • The right to vote in the European Parliamentary election
  • The right to take a case to the European Courts

The court has ruled that as triggering Article 50 would remove some of our rights, it would be illegal for the government to trigger Article 50 without Parliament passing a law first. Furthermore, it ruled that because the decision to join the EU (at the time known as European Economic Community) was made by Parliament via the European Communities Act 1972, that the decision could only be ultimately overturned by Parliament.

But didn’t Parliament give their consent when they voted to hold the referendum?

In order to hold the referendum Parliament passed the 2015 European Referendum Act. This act did not include a process for how Article 50 would be triggered in the event of a of Leave Vote. So Parliament never gave the government permission to trigger article 50 and from a legal point of the view the referendum was only advisory.

This is in contrast to, for example, the AV referendum in 2011, in which Parliament the legislation itself stated that if the event of a “Yes” vote, the new voting system would automatically be introduced.

Will this stop Brexit?

The ruling was about the legality of the process not the legality of Brexit. The court made no political judgement or whether we should or could leave the EU.

MPs may now have to vote on whether to trigger article 50 but they are accountable to their constituents so are likely to bear this in mind when voting.

Why do we think the court ruling was a good thing?

At Unlock Democracy we do not think that Theresa May should be allowed to make the biggest constitutional decision in generations using an ancient power designed for the convenience of Medieval Kings and Queens.

A tremendous number of decisions will have to be made as part of the Brexit process. The scope for mistakes and corrupt decisions is immense. Without Parliamentary scrutiny, and ultimately public scrutiny, such decisions would be left to happen without oversight. Brexit is already being talked about as a “bonanza” for lobbyists; our best democratic tool to ensure that decisions are made in the public interest remains our elected representatives in Parliament.

Furthermore, UK constitutional law is partially made up of precedents. If we allowed Theresa May to use Royal Prerogative in this situation, it could be used as an example of why it should be allowed in the future. This could pave the way to a more and more powerful executive.

So what happens now?

The government is appealing the ruling. The case will now be heard at the Supreme Court in early December.

If the government lose again MPs will pass a law allowing the triggering article 50 before, likely before March.

Got a question? Feel free to ask it in the comments box and we’ll try and answer it for you.