Article 50: British Parliament Must Approve Brexit

On November 3rd, 2016, three high court judges ruled that British Prime Minister Theresa May does not have the power to unilaterally trigger Article 50 of the Lisbon Treaty, which would initiate the process of the United Kingdom’s two year exit from the European Union (EU). Instead, the court ruled in favour of parliamentary sovereignty and declared that an Act of Parliament is required to formally start Brexit discussions. This ruling effectively derails May’s pledge to invoke Article 50 by the end of March 2017 and to begin negotiations to leave the EU. The British government is pressed for time as it wants to restore confidence in British markets. However, EU officials have refused to start Brexit negotiations until the article has been invoked. Officially, the government has remained committed to their predetermined negotiations’ timeline, but parliamentary approval could take months to obtain. Hours after the decision was released, the government announced that it would challenge the court’s ruling, but the initial decision is expected to hold against the appeal process.

The case was lodged by Gina Miller, who was incensed by the Tories’ plans to invoke the Prime Minister’s prerogative powers to unilaterally initiate Brexit. She consequently decided to take legal action to protect parliament’s sovereignty. During the referendum, the Leave side, spearheaded by the United Kingdom Independence Party (UKIP), vigorously campaigned on the issue of Europe’s democratic deficit under the slogans of ‘Lets take back control’ and ‘We want our country back!’ The populist party claimed that European institutions were increasingly siphoning power away from the British government, thereby hindering its ability to govern in the best interests of the British people. Miller maintains that her decision was not motivated by her desire to challenge the outcome of the referendum, but rather to ensure that democratic principles are upheld.

Some worry that a parliamentary vote could result in a rejection of the referendum results, but that is not likely to happen. Currently, Theresa May’s Conservatives have a narrow majority in the house, holding only 328 of 650 seats. Due to internal party divides, there is some uncertainty over whether she would be able secure the support of the entire Tory caucus. Potentially, the combined voting power of the Labour party, the Liberal Democrats, the Scottish Nationalist Party, and a selection of pro-EU Tories could block the necessary legislation to invoke Article 50. However, it is unlikely that parliament will disregard the will of the population, as 52% of the UK population voted in favour of leaving the EU. Labour leader Jeremy Corbyn, who campaigned vigorously for the Remain side, has stated that “we accept the results of the referendum. We are not challenging the referendum. We are not calling for a second referendum.”

The court’s ruling enables greater transparency in the negotiations process, but it will prolong what is already proving to be a long and painful divorce. Notably, Theresa May has kept her strategy for Brexit negotiations under wraps, claiming that this is the best way to ensure that Britain secures the best possible deal for leaving the EU. Worryingly, according to a leaked memo, it appears that the government is struggling to reach consensus and has not yet formulated a cohesive strategy for the negotiations that they planned to begin in a mere four months. Now the British government faces negotiations on two levels, domestically and internationally, potentially limiting its ability to compromise with European officials in order to appease parliament.

With the court’s ruling, May will have to consult parliament, granting MPs the opportunity to demand that certain conditions of the UK’s departure from EU are met, namely the increasingly contentious issue over whether Britain will retain access to the common market. This will prove be difficult to accomplish given the British government’s hard line stance on curbing immigration flows. European officials have stated that there will be no discussion of Britain having privileged access to the European market if they are not willing to embrace the EU’s core principle of the free movement of people. To further complicate matters, some have speculated that when the legislation is brought before parliament, an amendment could be made requiring a second referendum to allow the people to vote on the final deal that the government brokers to leave the EU.

While it is too soon to foresee the eventual outcome of Brexit, the question is not whether or not Britain will actually leave, but when it will do so. The process will undoubtedly be long and difficult, as Britain is venturing into uncharted territory – no state has ever withdrawn from the EU.  Moreover, the British government must formulate the stance that it will adopt in negotiations – will it be a ‘hard’ or ‘soft’ Brexit when Britain redefines its relationship with Europe? With the high court’s ruling, parliament will now certainly play an instrumental role in influencing negotiations.

The featured image is public domain.