A huge obstacle just landed in the way of Brexit.
The UK’s High Court has ruled that the government cannot trigger Article 50—the official notification to leave the European Union—without a vote in Parliament.
Prime minister Theresa May argued that the government has the right to decide when Britain officially started the process to leave the EU, which she’s scheduled for March 2017. But the judgment went against her—the lord chief justice stated that “the most fundamental rule of the UK constitution is that parliament is sovereign.”
How did the UK get into this mess?
The government insisted that a parliamentary vote was unnecessary as the country had voted to leave the EU in a referendum approved by an act of Parliament, therefore the approval of the legislature had been granted to its result.
But the claimants who brought the case to the High Court—made up of an unlikely combination of an investment manager, some British expats, and a hairdresser—argued that triggering Article 50 would be irrevocable and it would rob British citizens of their fundamental rights enshrined in UK law. In any situation where people’s fundamental rights are at stake, the claimants say the decision should lie with Parliament and not the government.
The High Court’s decision today does not overrule the referendum result. Instead, it simply says that power to decide whether or not the process of leaving the EU can be triggered does not lie with May or her government, but with the Parliament.
The legal challenge wasn’t necessarily about blocking Brexit—Conservatives who may have supported Brexit still called for Parliament to have the final say on Article 50 as a matter of constitutional sovereignty. Still, the ruling is a huge setback to May, who has been accused of steering the country towards a so-called hard Brexit that prioritizes stricter controls on immigration over tariff-free access to the EU single market.
What was the reaction?
Nigel Farage, the architect of Brexit, gave a stark warning:
The opposition Labour Party’s leader Jeremy Corbyn said the High Court ruling “underlines the need for the government to bring its negotiating terms to Parliament without delay.”
And the pound rallied up from its historic low, up about 1% against the US dollar…
…but still down 17% from the Brexit vote.
What happens next?
The government has confirmed it will appeal the decision.
The case will now go to Britain’s Supreme Court, which is likely to hear the case in the first week of December. In an ironic twist, there is also a possibility the Supreme Court could refer the case to the European Court of Justice, which remains the highest court in some situations while the UK is still a member of the EU.
Could this stop Brexit from happening?
Theoretically, yes. That’s because—assuming the government doesn’t win its appeal—a bill to trigger Article 50 will now have to pass through both houses of Parliament; there is a small chance that it might not.
That said, lawyer Joylon Maugham thinks there is “little or no enthusiasm” in Parliament for rejecting a bill that goes against the wishes of people as expressed by the result of the referendum. There is, however, enthusiasm to scrutinize whether the May’s negotiations with the EU are satisfactory enough before Article 50 is triggered.
Another outcome of this court result, Maugham contends, is the likelihood of a second referendum. Nobody really knows what Brexit means. So the Parliament could add the condition to any Brexit deal the government secures with the EU to be put to vote in a referendum, before deciding to leave the EU for good.
Every outcome from Brexit progressing smoothly to Brexit not happening remains possible. In practice, it would mean the process of Brexit is likely to drag on for a much longer time, with more court cases and drawn-out negotiations soon to come.