Brexit – Who Decides?

On 3rd November, the High Court handed down its decision on whether the UK Government could trigger Article 50 of the Lisbon Treaty the process to start the UK’s exit from the EU – without the authorisation of Parliament. The Government argued that it could trigger Article 50 without Parliamentary approval by using its prerogative powers, specifically, ministerial powers exercised without Parliamentary authority. The claimants (a small number of UK citizens) argued that prerogative powers cannot be used to take away citizens’ legal rights which had been granted by an Act of Parliament. The UK’s membership of the EU was authorised by the European Communities Act 1972, an Act of Parliament, and this, the claimants argued, granted rights to UK citizens such as free movement within the EU. On leaving the EU, those rights would be taken away and, as such, could only be authorised by Parliament.

The court concurred with the claimants and decided that Article 50 could not be triggered without the authorisation of Parliament. The court reasoned that the Government could not, without Parliamentary approval, confer or remove legal rights granted by statute. Exit from the EU would remove rights from citizens and, on that basis, exit could only be authorised by Parliament.

In summary, Parliamentary approval is needed to trigger Article 50; it cannot be triggered by the Government alone.

The Government has said it will appeal to the Supreme Court and the hearing is set for 5 December with a decision due in early January.

So what does this mean for Brexit? The Prime Minister, Theresa May, had indicated she/the Government would trigger Article 50 by the end of March 2017, but this timetable seems to be in jeopardy given the High Court’s decision and the appeal to the Supreme Court. Political commentators broadly agree that the decision is unlikely to stop Brexit, although it could cause delay whilst the Parliamentary processes are undertaken, and alter the final form it takes (given the detailed Parliamentary scrutiny that now may be applied to the government’s planned negotiations with the EU).[:zh][:ja][:de][:]

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Posted on: 9th November 2016