On Thursday, the UK High Court decided that the Government did not have the power to trigger Brexit negotiations and needed approval from Parliament before doing so.
Why was this in court?
Article 50 of the Treaty on European Union allows a member state to notify the EU of its withdrawal and obliges the EU to try to negotiate a ‘withdrawal agreement’ with that state.
The Government argued that they could use their ‘prerogative powers’ to trigger Article 50.
These are a very old source of law which grants specific powers to the government (technically, the Queen). One example of prerogative powers is the making and unmaking of international treaties.
That is permissible because generally exercising those powers has no effect on domestic law, so there is no collision with parliamentary legislation, and parliamentary sovereignty is not affected.
However, the government cannot use prerogative powers to override legislation. Only legislation can override legislation.
By enacting the 1972 European Communities Act, which took the UK into what was then the European Economic Community, now the EU, Parliament made EU law part of our law.
What did the court rule?
The court decided that the Government can’t exercise Article 50 (therefore triggering an almost inevitable exit from the EU) without getting Parliament’s approval first.
This is because membership of the European Union has given many rights to British citizens, such as free movement across Europe and rights under the European Union Charter.
Therefore, only Parliament could take away the rights that Parliament has granted to British citizens through decades of EU laws.
What does this mean for Brexit?
The judgment does not block Brexit, it simply means that Parliament (MPs we voted for) and not the Government (Theresa May and her cabinet) have the final say on when and on what terms Brexit will happen.
It is likely that MPs will still vote to invoke Article 50. Although the referendum was only advisory and the MPs are not legally bound to act by it, it would be politically difficult to ignore ‘the will of the people’.
The proposed time frame to triggering Article 50 will now almost certainly be later as Parliament will have to debate the issue.
Owen Smith suggested Labour should amend any possible Article 50 bill to include a second EU referendum. However, Jeremy Corbyn has confirmed that Labour is still committed to Brexit. Along with other parties, he stressed the need for Brexit to work for ‘everyone’ and so the chances of a ‘hard Brexit’ have now decreased significantly.
Government reaction to the court ruling
The Government will be appealing the judgment. Given the significance of the matter and the time frame May has set to trigger Article 50 (March 2017), the appeal will go straight to the UK Supreme Court (the highest court in the UK).
Reactions from other political parties
Jeremy Corbyn, the Labour leader:
Labour respects the decision of the British people to leave the European Union. But there must be transparency and accountability to parliament on the terms of Brexit.
Labour will be pressing the case for a Brexit that works for Britain, putting jobs, living standards and the economy first.
Caroline Lucas, the Green party’s co-leader:
We welcome this ruling which shows that ministers do not have the power to trigger article 50 without consulting parliament.
Parliament must have the opportunity to debate and vote on triggering Article 50, rather than a group of ministers at the top table having total control over this country’s future place in the world.
The Green party will continue to fight to protect free movement, workers’ rights and the vital environmental protections we currently have as part of the EU.
Nicola Sturgeon, the Scottish first minister:
That the UK government is now in the position where the court has ruled against it and is insisting that parliament must vote before article 50 can be triggered underlines the chaos and confusion at the heart of the Tories’ handling of Brexit.
Let’s be clear – the prime minister has not tried to avoid parliament because of constitutional principles but because any vote in parliament would expose the complete lack of a plan for what Brexit means.
In whatever eventually comes forward from the UK government to parliament, SNP MPs will not vote in any way that would undermine Scotland’s interests.
Carwyn Jones, first minister of Wales:
The high court ruling is extremely clear – the UK government cannot trigger article 50 using the Crown prerogative. Indeed, this is consistent with many of the arguments made by the leave campaign themselves about parliamentary sovereignty.
The position of the Welsh government has been consistent throughout – we accept the decision made by the people and will not work against the referendum result – we are working hard to get the best possible exit terms for Wales. However, it is important that votes take place in all four nations to endorse the UK negotiating position.
For more reactions, see The Guardian.