A guide to the latest stop on the Brexit journey
8 November 2016 by Ashton Carter
So the long and potentially rocky road to the UK’s withdrawal from the European Union (also know as Brexit) has taken another twist as the UK withdrawal from the EU looks like it is going to be delayed. The latest development comes as the High Court has now decided that the Government acting alone does not have the power to trigger Article 50 and that it must first seek Parliamentary approval.
But what does it all mean? What is Article 50? Most importantly, how does this affect Brexit and what does it actually mean to you and me? Here’s our guide to how the development that some people are calling “The most important constitutional court case in a generation” might actually affect you…..
What is Article 50?
Article 50 of the Treaty on European Union (TEU) governs the withdrawal of a Member State from the European Union. Once notice under Article 50 has been given, a two-year period is commenced in which the Member State can negotiate a withdrawal agreement. If an agreement cannot be reached within the two-year period, the EU treaties will cease to apply to that State, unless the European Council unanimously agrees to extend the period.
Why is it so important?
According to the High Court, notice under Article 50 cannot be withdrawn once it is given and cannot be given on a conditional basis. That means that the Government could not give notice on the condition that the decision subsequently receives the approval of Parliament. The decision to trigger Article 50 is therefore hugely important as, if the High Court’s view is correct and once notice is given, rights granted by EU law will be lost as soon as the Brexit withdrawal period is over.
What was the question for the Court?
A case was brought for the Court to decide whether or not the Government, acting under what’s known as ‘prerogative powers’, can give notice under Article 50 to begin the process to withdraw from the EU.
Lord Pannick, who represented the claimants in the majority of the case, argued that it is an established rule of our constitution that the Government cannot use its prerogative powers to reduce or remove the rights of individuals without the approval of Parliament. As giving notice under Article 50 would ultimately lead to the removal of rights at the end of the withdrawal period, Parliamentary approval must therefore be required.
What did the Government argue?
The Government responded by saying that one of the primary uses of prerogative powers is the conduct of international relations and the making and unmaking of international treaties. Therefore, the use of prerogative power is the appropriate method of issuing notice to withdraw. Furthermore, if it was intended that prerogative powers could not be used to withdraw, then wording to this effect would have been included in the European Communities Act 1972 – which it wasn’t.
The Court’s decision
Put simply, the Court agreed with Lord Pannick. It held that membership of the European Union grants numerous rights to British citizens such as the right to free movement across Europe. These rights have been granted by Parliament through the enactment of EU laws and it is therefore only proper that these rights are also revoked by Parliament – which is an interpretation supported by a large amount of constitutional case law.
The opportunity was also taken by the Court to emphasise the fact that the result of the EU Referendum which took place in June was not, and never intended to be, binding on Parliament. When a vote is inevitably taken to Parliament, it will be free to decide whichever way it wishes, although the public opinion reflected in the Referendum result will clearly be strongly influential.
What happens next – Will it delay Brexit?
The Government has made it clear that they intend to appeal the decision of the High Court. The Supreme Court will therefore hear the appeal on 5th- 8th December, with judgment being handed down a few weeks later. This could mean that we are waiting until January 2017 to hear the final verdict and, if this is the case, this will further push back the Governments plans to trigger Article 50, which Theresa May has already promised to invoke by the end of March next year.
Are there any other possible consequences of Brexit?
Further complications may arise if this is the final decision, as it will not be clear whether Parliament will be required to consider complex legislation prior to granting its approval. Considering the fact that the majority of MPs voted to Remain, it could even lead to an early general election if Parliament’s approval cannot be obtained.
The Scottish government has also now announced that it is to seek to intervene against the UK government’s appeal and is expected to argue that the consent of the Scottish Parliament should also be sought before Article 50 is triggered. The biggest immediate consequence of this is again potential delays. On top of the existing appeals, this could see the March timetable for Brexit completely thrown out the window.
If you require any legal advice or assistance please contact Fisher Jones Greenwood LLP by calling us on 01206 700113 or email [email protected]