Wednesday 2 November 2016

Brexit - the Article 50 litigation

The High Court will hand down its judgment in the "Brexit / Article 50" litigation at 10 am this morning.

Whichever way the litigation goes, there is a possibility of an appeal to the Supreme Court though an appeal is not inevitable.

Article 50 of the Treaty on European Union (TEU) sets out the process by which a member state may leave the European Union (EU).  Article 50 first appeared in EU law in the 2009 Treaty of Lisbon and the article has never been tested previously in any court.    The article requires that the member state makes a decision to leave in accordance with its own constitutional requirements.  Having made a decision, article 50 requires that the EU be notified.

Essentially, the litigation is about what those UK constitutional requirements are.  The UK is a Parliamentary democracy.   So that the referendum could be held, Parliament enacted the Referendum Act 2015 but the wording of the legislation did not require, as a matter of law, either Parliament or Ministers to do anything about the result.  This contrasted to a previous referendum about whether to adopt the "Alternative Vote" system for elections to the House of Commons.  In that case, the legislation had specified that the Minister was to take action to implement that system if the electorate opted for it.  In the event, the idea was rejected.

Has the UK reached a decision to leave in accordance with its constitutional requirements without the further involvement of Parliament and may Ministers notify the EU of that decision without the further involvement of Parliament.  The government's position is that it may use its "Royal prerogative" powers in relation to treaties to give the notice and thereby implement the outcome of the referendum.  It is a position that has sharply divided legal opinion.  The legal arguments before the court were covered in a previous post - High Court hearing on Article 50 - the transcripts

One point raised in the case by the judges was whether a notice under Article 50 could either be revoked by the UK or given conditionally on Parliament eventually approving withdrawal from the EU.  The case proceeded on the basis that the answer to both questions was NO but,ultimately, the meaning of Article 50 is a matter of EU law and there is a possibility that the judges could refer the point to the Court of Justice of the EU if they consider it necessary to decide the case. 

If the decision goes against the government there could be acceptance of it and the government would then take the matter to Parliament.  It is not necessarily inevitable that MPs would vote against Brexit since, politically, they may not wish to vote against the wishes of the electorate as expressed in the referendum.  Given the "remain" results in Scotland and Northern Ireland, any Commons vote could be a close run thing.

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