Brexit: where next? Reflections on High Court ruling

The High Court has delivered a blow to the UK government’s Brexit strategy with the landmark ruling on the legal challenge to Article 50.

The ruling, delivered on 3 November 2016, states that the government cannot use its prerogative powers to trigger Article 50. The decision is of great significance both constitutionally and politically. The government’s appeal against the ruling has now been set to be heard in the Supreme Court from 5 December 2016. If the appeal is rejected, it could have wide-reaching consequences for both the timing of triggering Article 50 and the very nature of the deal the UK strikes with the EU.

If the Supreme Court does uphold the High Court’s ruling then it looks almost certain that the government will be required to introduce an act of parliament (by way of a bill) which asks parliament to delegate the power of triggering Article 50 to the government. If Prime Minister Theresa May is to keep to her self-imposed March 2017 deadline for triggering Article 50 (which she has assured President of the European Commission, Jean-Claude Juncker she will), then the bill will need a smooth and speedy transition through both the House of Commons and the Lords.
However, a straightforward passage towards being passed into law cannot be guaranteed given the current make-up of both houses.

A political game

In principle, members of parliament should not want to vote down Article 50 as they will not want to be seen to be denying the will of the voters. However, they will be aware of the increased bargaining power with the government that the situation presents to scrutinise the Brexit negotiating strategy. The possibility exists that MPs might seek to amend the bill and add conditions on Brexit, which could significantly delay the bill’s passage through parliament. There are also the Lords to consider: a significant proportion have repeatedly threatened to block Brexit if they have the chance. Unlike MPs, peers do not have to worry so much about their voter appeal. While it may prove difficult for them to block Brexit, they could significantly delay the UK’s exit.

If pushed down the bill route, the government still has two cards up its sleeve: the drafting of the bill itself and the Parliament Acts 1911 and 1949. The latter, although rarely used, provides a way of solving disagreement between the Commons and the Lords, allowing the Commons to force the bill through the Lords. Representing the nuclear option, the government will want to avoid this if they are to stave off further delays to triggering Article 50 and indeed a constitutional crisis. However, how the government drafts the bill will be significant. A tightly worded bill allows the government greater latitude to reject amendments due to their ‘irrelevance’ to the bill’s title. The government legal team are therefore no doubt already working hard on such wording.

Politically, losing the Supreme Court appeal will also be difficult for Theresa May as Prime Minister. She has a number of potentially difficult backbenchers in her own party who have made it clear that they are willing to rebel. The majority of MPs were for remaining in the EU and Theresa May’s governing majority is extremely slim. Therefore, she may be forced to call a snap general election to increase her majority and win a new mandate. However, such a possibility will ultimately be determined by what the Prime Minister really wants. It may well suit her purposes to stick with parliament as currently constituted in order to stifle those in her own party who are pushing most stringently for a ‘hard’ Brexit.

A twist in the tale

The Scottish government’s announcement that they will apply to intervene in the Supreme Court hearing represents a further twist in the tale. The Welsh Assembly are expected to make a similar application and it looks likely that at least one of the applications made to the Northern Ireland High Court will also be heard in the Supreme Court. If the Supreme Court decide that the UK government must seek parliamentary authorisation to trigger Article 50, they will therefore need to address the devolution implications of this.

Outside Westminster and the corridors of the Supreme Court, this latest development will add to the uncertainty already being experienced by Britain’s business community. While some are confident that the involvement of parliament could mean the UK ends up with a ‘soft’, or ‘orderly’, Brexit, the possibility of a delay to triggering Article 50 in the meantime adds a further layer of uncertainty to a process that is already scant in its detail.

One thing that is certain: the Supreme Court hearing between the 5 and 8 December 2016 will be a crucial pinch point for the government’s Brexit strategy. Whatever the result, it will fundamentally shape how the UK attempts to leave the EU.

Related item: Visit our Brexit focus area for latest updates