Theresa May loses Brexit legal challenge as High Court rules Parliament must vote on Article 50 trigger

The High Court has today ruled that, as a matter of constitutional law, the Government does not have the power to give notice pursuant to Article 50 to withdraw from the European Union without a vote from Parliament.

In the Court’s view, the power to give notice under Article 50 rests solely with parliament insofar as Article 50 will have the inevitable effect of changing domestic law and in particular the part of domestic law brought in by the European Communities Act 1972. On this Act, Lord Justice Thomas said:

In our judgment, the clear and necessary implication from these provisions taken separately and cumulatively is that parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers 

The High Court judges emphasise that they were considering a legal question, and were therefore not concerned with expressing any view about the merits of leaving the EU saying “that is a political issue.” Thus the Court recognises the significance of the referendum “as a political event” but rejects the government’s legal arguments that it has powers to override legislation without parliamentary oversight.

The judgment holds that “the most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses.”

Turing to the Referendum Act 2015, the Court said that:

 106. That Act falls to be interpreted in light of the basis constitutional principles of parliamentary sovereignty and representative democracy which apply to the United Kingdom, which lead to the conclusion that a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question.  No such language is used in the 2015 Referendum Act. 

107.  Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. Moreover, Parliament must have  appreciated that the referendum was intended only to be advisory as the result  of a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union. [bold added]

On any view, this is a huge setback for Theresa May and her plans to exit the European Union without a vote in Parliament on whether to invoke Article 50 of the Lisbon Treaty. She has today confirmed that the government will be appealing to the Supreme Court. Assuming that permission is granted, the hearing is currently expected to take place on the 7th and 8th of December. If it upholds this ruling, the Supreme Court will only be able declare that the government may lawfully trigger Article 50 pursuant to an act of parliament. In my view, the Supreme Court will be at pains not to depart from a ruling firmly grounded on long-standing constitutional principles on sovereignty of parliament and a bright demarcation of powers.

Despite the controversy and tension that today’s judgment is likely to cause, the reality is that Parliament will be bound to respect the people’s vote in the referendum and enact a law enabling the process of exit from the European Union. However, it may hand Parliament an influential role in deciding what kind of Brexit should occur. That is likely to lead to a healthier and more democratic debate on key issues such as access to the single market and free movement of persons.