03 November 2016

The High Court has ruled that the Government cannot kick off the process of the UK leaving the EU without the consent of Parliament. Dr Hannah White looks at what we know about what happens now.

What was the High Court deciding?

The court case was to decide if the Government could trigger Article 50 of the Treaty on the European Union using its ‘prerogative power’. This means the power – originally held by the Crown but now exercised by ministers – to act without parliamentary consent. The High Court has ruled against the Government, saying it will need to secure Parliament’s consent before triggering Article 50.

Does this mean Brexit won’t happen?

No. The court’s decision does not override the result of the referendum – it only rules on the process which the Government must follow to give effect to the result. This judgment has placed a new obstacle on the road towards the UK leaving the EU. The Government has announced its intention to appeal, but no one has discussed overturning the referendum result.

So what does happen next?

The Government has indicated that it intends to appeal the High Court’s decision. The appeal will leapfrog the Court of Appeal and move straight to the Supreme Court, which has set aside time from 7-8 December to hear the case. Given the political time pressure, it seems likely that the Supreme Court will attempt to issue its judgment before Christmas.

What does this mean for plans to trigger Article 50 by the end of March 2017?

It depends on the outcome of the appeal. As things stand today, the Government cannot trigger Article 50 by March 2017 without Parliament’s authorisation. It is worth adding that legal minds don’t believe an appeal is likely to be successful. Jeff King, Professor of Law at UCL, says: ‘An appeal looks hopeless, and so the Government had best get busy with drafting a bill.’

How will Parliament authorise the Government to trigger Article 50?

The ruling doesn’t say this explicitly, but Parliament will need to pass a new bill that gives Government the authority to trigger Article 50. Professor King argues that this is ‘the only legally tenable interpretation’ of today’s judgment. If the Prime Minister wants to stick to her self-imposed March 2017 deadline, this new bill will have to be introduced as soon as possible.

Given the Government has only a slim majority in the House of Commons and no majority in the House of Lords, the time it will take for the bill to pass is uncertain. While it is possible for legislation to be passed quickly in an emergency, this would require the consent of both Houses. But Parliament will want to ensure that there is time for the bill to receive proper scrutiny.

What would the process look like …?

In the Commons The Government will agree how much time the Commons will have to scrutinise the bill – this is known as ‘passing a programme motion’. It will involve a careful judgment call. MPs may feel more comfortable voting against or amending a programme motion which restricts the time available for debate, than they would be voting against the legislation altogether.

In the Lords The passage of legislation is not timetabled, so there is much more uncertainty for the Government about how long the bill will take to pass. In light of this, it is possible that the Government will introduce legislation immediately – as a precaution, in case it loses its appeal.

Will MPs and Lords vote to pass the bill?

This will of course come down to politics. Both the Commons and Lords have a majority of members who argued for the UK to remain a member of the EU. But politically, they may not wish to vote against the decision of UK voters taken through the referendum, particularly as most constituencies outside the Scotland, Northern Ireland and the major cities voted against remaining in the EU.

Nonetheless, they will wish to ensure that the decision to trigger Article 50 receives an appropriate degree of parliamentary scrutiny. Depending on how the bill is drafted – and it is likely to be very short – there may be moves to amend it to place conditions on the Government before it can trigger Article 50. These could take the form of timing or process requirements – for example, a requirement on the Government to provide Parliament with information about its negotiating position before triggering Article 50.

Comments

It seems very odd that a government with a clear, although small, majority is frightened to put this question to Parliament. In the Commons, a vote to allow the Government to trigger Article 50 on or around the end of March would surely pass with a three-line whip and the Lords can be effectively neutered by Mrs May offering to create sufficient life peers to overwhelm any opposition if they don't pass the act without amendment.

I get so annoyed by the anti EU exit voters attitude, for me their constant ranting's are like puberty blue girls and boys ways.

I believe that because they cannot accept the result and continue to cry like babies they are undermining the whole concept of democracy.

Do they not know that all the negatives we see just now in terms of financial instability will balance out in the end, yes there is and will be negative responses in the markets, that was to be expected, but can someone in authority tell them t o GROW UP, we have only been in the EU for 40 years.

I was especially angered by Dianne Abbot's comment that those of us who voted to come out are racist, that was offensive and racist in tone, I asked the PM to initiate a Parliamentary Investigation into her comments as they were discriminatory.

This is a good summary. Can you think of any argument which the Government could, plausibly, put to the Supreme Court?

A sensible condition would be that goverment gets full agreement on the circumstances under which the Article 50 notification can be withdrawn. Triggering Article 50 without clear understanding of the rules would be very risky.

The referendum was a binary choice: Leave or Remain. The choice was Leave, so the moral/political force of the Referendum requires Parliament to authorise Leave. However, the referendum gave no opportunity for a choice between so-called hard or soft Brexit, or any other variant as to the type of Brexit.

Why, therefore, is Parliament not politically and morally free (even duty bound) to impose conditions as to the type of Brexit - hard, soft or other - when authorising the Government to pull the Article 50 trigger, if Parliament considers that to be in the UK's best interest?

Most likely scenario would be the UE-27 and in the UK agree between the to suspend negotiations Brexit this is clearly proplematic in political terms while not so many in one derection is legal The true Democrats will fight fight to save the country they love UE is committed to four freedoms capital goods works and services

I thought this a useful summary -- and I strongly agree with the suggestion by Mr Spence-Jones. Parliament must be satisfied that even after Article 50 has been triggered, the notification can be withdrawn with the agreement of the rest of the EU if, for example, the agreement negotiated post-Article 50 turns out to be unacceptable to Parliament.

However, I have reservations about the post's assertion that "no one has discussed overturning the referendum result". Actually this is being discussed quite widely, e.g. in a new blog post by the Director of the Federal Trust (http://tomahawk.circlesquare.biz/t/r-l-yhtiktdk-hikiujlrdy-r/). It's hard, surely, to dispute the validity of two relevant propositions: first, that the referendum was legally advisory only and could not bind Parliament to take any specific action in the event of one result or the other; and, secondly, that members of Parliament owe us, the electorate, not their obedience to our opinions in a referendum or otherwise, but their best judgement of the nation's best interests (ring a bell?). If, as is almost certainly the case, a majority of MPs and peers remain convinced that Britain will be much worse off in almost every way outside the EU than in it, then they have a solemn duty to vote accordingly, i.e. against any bill whose purpose is to authorise the Government to trigger Article 50.

If such a bill were to be defeated in Parliament, the Government's obvious course would be to call a general election on the issue. If this were to be fought on conventional party lines, it would almost certainly go badly for those of us who believe that everything should be done to keep Britain in the EU, since (a) Jeremy Corbyn is unlikely to have the courage to commit Labour to an unambiguous policy of staying in the EU if Labour were to win the election, which would give the electorate a clear second choice, and (b) even if he did, Labour under Mr Corbyn's leadership is almost certainly incapable of winning an election on its own, since only a small minority would vote in such a way as to make Corbyn Prime Minister. There might well therefore be a need for a progressive pro-EU, anti-Article 50 alliance to fight the election on a platform of denying the Government the power to trigger Article 50, with support from across the Westminster parties.

I thought this a useful summary -- and I strongly agree with the suggestion by Mr Spence-Jones. Parlliament must be satisfied that even after Art. 50 has been triggered, the notification can be withdrawn with the agreement of the rest of the EU if, for example, the agreement negotiated post-Art. 50 turns out to be unacceptable to parliament.

However I have reservations about the post's assertion that "no one has discussed overturning the referendum result". Actually this is being discussed quite widely, e.g. in a new blog post by the Director of the Federal Trust (http://tomahawk.circlesquare.biz/t/r-l-yhtiktdk-hikiujlrdy-r/). It's hard, surely, to dispute the validity of two relevant propositions: first, that the referendum was legally advisory only and could not bind parliament to take any specific action in the event of one result or the other; and, secondly, that members of parliament owe us, the electorate, not their obedience to our opinions in a referendum or otherwise, but their best judgement of the nation's best interests (ring a bell?). If, as is almost certainly the case, a majority of MPs and peers remain convinced that Britain will be much worse off in almost every way outside the EU than in it, then they have a solemn duty to vote accordingly, i.e. against any Bill whose purpose is to authorise the government to trigger Art. 50.

If such a Bill were to be defeated in parliament, the government's obvious course would be to call a general election on the issue. If this were to be fought on conventional party lines, it would almost certainly go badly for those of us who believe that everything should be done to keep Britain in the EU, since (a) Jeremy Corbyn is unlikely to have the courage to commit Labour to an unambiguous policy of staying in the EU if Labour were to win the election, which would give the electorate a clear second choice, and (b) even if he did, Labour under Mr Corbyn's leadership is almost certainly incapable of winning an election on its own, since only a small minority would vote in such a way as to make Corbyn prime minister. There might well therefore be a need for a progressive pro-EU, anti-Art. 50 alliance to fight the election on a platform of denying the government the power to trigger Art. 50, with support from across the Westminster parties.

The hystericall outpourings against the judges and the judgement indicates to me that there are prò brexit groups who fear proper consideration and scrutiny of the separation process. If more informed and honest consideration had been given to the issues before and during the referendum perhaps then many people wouldn't be surprised by the fact that simply clicking your ruby brexit slippers together will not take you straight to Kansas. The tactics of some groups reminds me of the quote on my toddler nephews tee shirt - " Saw it, wanted it, had a tantrum, got it."

"

I think that the centre and left have just caused a massive constitutional crisis. The question of whether to leave the EU was a straight in/out vote. That means a majority voting for out requires that the government issue article 50 and remove the UK from all legal ties to the EU, including but not limited to, payments for membership of the single market, and the freedom of movement parts (which is what most people were concerned about).

If we negotiate a position whereby the UK gains access to the single market, then there should be a further national vote of the terms of that agreement, i.e. the simple terms of such an agreement are put to the public and a yes/no vote is permitted.

If voting yes would mean opening the borders to freedom of movement, I'm guessing that the majority will vote no to that. There is the only question that now needs voting upon. It is not required for Nicola "I'm a racist but it's ok because it's only against the English" Sturgeon to participate in any of this discussion, she will get her single vote like everyone else; right at the end when we decide whether the terms of membership of the single market are acceptable or not.

I think the people of England voted for Brexit after being engulfed with untrue information both from unscrupulous politicians and scandalous press coverage. Therefore, the truthful facts should be presented and another fair and truthful referendum take place. Failing that, MPs should vote for what is right and good for the UK regarding the EU. They have a moral duty. They know they have done wrong. That is my opinion.

MP's are the representatives of the electorate and their vote should not be required as the electorate have already spoken individually in the referendum. After all we are a democracy, aren't we?

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