May’s Brexit plans complicated by High Court ruling

3rd November 2016. Matthew Holehouse & Lewis Crofts

UK prime minister Theresa May will still meet a deadline of beginning the EU exit process by the end of March, her office said on Thursday, after a court ruled lawmakers must first vote on starting Brexit talks. In reality, the ruling presents a major obstacle to a swift exit, and heightens the likelihood of an early general election.

The ruling from the High Court may also embolden lawmakers uncomfortable at the executive’s intention to use prerogative powers to make sweeping amendments to European laws in force in Britain, in preparation for the UK’s exit from the bloc.

Also, the Scottish Government announced on Thursday that it is willing to enter litigation over the Brexit process, widening the rift with Westminster.

The ruling by the High Court, in a case brought by a series of UK citizens, was striking in its simplicity.

But its consequences will be many, varied and complex for May’s government, the devolved administrations, and businesses and citizens seeking clarity on where Brexit is heading.

No prerogative

The court held that the triggering of Article 50, the exit clause of the EU treaty, would set in train events that would deprive UK citizens of certain rights, such as living in other European countries, voting in European parliament elections, or seeking a reference to the European Court of Justice.

It held that, under the UK’s unwritten constitution, rights created by parliament cannot be removed by the executive.

Given parliament decided to “switch on the direct effect of EU law” by voting on it in 1972, it is not plausible that it wanted to allow the government “under its prerogative powers to switch it off again,” the judges said.

The government’s argument that it had a mandate from June’s referendum, and that EU exit fell under its sovereign ability to agree foreign treaties, was dismissed.

Commons Marathon

Theresa May’s office said it would appeal the judgment. The Supreme Court has set aside time in early December to hear the case.

The PM’s team insisted the appeal wouldn’t disturb the timetable of triggering Article 50 by the end of March.
“Our plan remains the same,” May’s spokeswoman said. Preparations for the exit negotiations will continue, she said.

With all previous certainties now up in the air, May is to speak to Jean-Claude Juncker, the president of the European Commission, on Friday. The government will then update lawmakers on its plans on Monday.

The government faces hurdles, however, to meet that March deadline. What’s more, how to implement the judgment isn’t clear. It didn’t specify what form parliamentary consent should take.

But David Davis, the Brexit secretary, said it would likely require legislation put before both the House of Commons, the lower elected chamber, and the House of Lords, the upper unelected chamber.

The Commons is likely to endorse the activation: the governing Conservative Party has a narrow majority of 15, and many opposition Labour MPs represent working-class districts that voted heavily for Leave.

But the Lords, a revising chamber, is liable to be much more problematic: the Conservative Party accounts for just 255 of 812 peers.

Under the British constitution, the Lords does not block legislation that was promised in an election manifesto, which does not apply to Brexit. This heightens the likelihood of May opting for a general election, early next year.

The passage of legislation will also provide opportunities for lawmakers to make amendments, placing constraints on the shape of a deal the government strikes and the time it takes to get there.

Power of executive questioned

One of the judgment’s main consequences will be giving the parliament more control over the shape and terms of Brexit, and curtailing the executive’s influence.

May is planning a Great Repeal Bill for next year, scrapping the keystone legislation which anchors EU law in the UK statute. It will empower ministers to amend European laws that will be directly transposed into UK law through statutory instruments.

The use of SIs is a normal part of the legislative process, allowing EU laws to be tweaked as necessary to make sure the domestic statute book tallies with decisions in Brussels. But ministers acknowledge that seeking to rewrite 43 years’ of accumulated legislation in one swoop by executive writ will be controversial.

Today’s judgment may encourage those lawmakers troubled by this sweeping use of executive power to raise objections to the Great Repeal Bill.

Scotland speaks

Another potential headache for May is the impact of today’s ruling in Scotland.

One set of claimants in the proceedings said the unilateral activation of Article 50 was incompatible with the constitutional settlement in Scotland.

They argued that under the Act of Union 1707, which created the UK, it was held that only the UK parliament, and not the Crown, could rewrite law in Scotland.

The judges did not address this point. It may return, however, at the appeal hearing.

Nicola Sturgeon, the Scottish first minister, told lawmakers in Edinburgh that her administration is examining whether to become participants in the case.

Adding yet another angle to the case risks further undermining May’s ability to manage the Brexit process.

The Supreme Court is likely to have the final say, since the dispute rests on issues of UK constitutional law rather than European law. But a hearing is a month away, and a judgment even further.

	Eliot Gao