On November 3rd, 2016, the High Court in London ruled in the matter of R (Miller) vs Secretary of State for Exiting the European Union. Based on the High Court’s decision, the British government needs to obtain the Parliament’s vote before triggering Article 50 of the Lisbon Treaty, the official way to start the Brexit proceedings.
The case, brought in front of the High Court by businesswoman Gina Miller and hairdresser Deir Dos Santos, focused on the wording of Article 50, which reveals a member country may leave the EU “in accordance with its own constitutional requirements”. Since Article 50 leaves the meaning of “constitutional requirements” open to interpretation, the High Court had the opportunity of explaining it and, in doing so, it referred to the 1972 European Communities Act, the instrument whereby the UK was able to join the EU. According to this document, the British Parliament has incorporated the EU law into the UK law and, based on the principle of parliamentary sovereignty, the Parliament holds the institutional power to turn around the process.
Commenting on the news, the Labour Party’s Brexit spokesman, Sir Keir Starmer, as well as the political leader in Scotland – a region which voted preponderantly for the UK to stay in the EU, welcomed the High Court’s decision. Confirming the ruling was “constitutionally correct”, the MEP Nigel Farage acknowledged the High Court’s decision deemed the June’s referendum advisory. This ruling, which may be appealed at the Supreme Court and further at the European Court of Justice, is raising the question of how it may shift the government’s plans to start the exit negotiations with the EU.
Theresa May, the British Prime Minister, has previously announced plans for the UK to trigger Article 50 by the end of March 2017. An appeal at the Supreme Court and a potential parliamentary debate and vote may challenge Mrs. May’s March 2017 target date. The Parliament, which may opt for a straight forward vote or draw primary legislation to repeal the European Communities Act, may use this opportunity to aim and shape the type of Brexit deal Mrs. May wishes to negotiate.
Businesses, the City of London, Remain regions, financial markets, and other interested parties seem to be seeking clarity and reassurance from the government moving forward and may benefit from a timely Brexit schedule. To further emphasise the connection between Brexit talks and economy, the pound bounced up more than 1% versus the dollar, at $1.24, following the court’s announcement. An option the British PM may use to ensure Brexit starts on time may be calling an early parliamentary election. Normally, Britain is due to go to the polls in 2020, however the government may organise an early election seeking to obtain a Tory majority in the parliament and move on with Brexit.
The next important legal step may be the government’s appeal, which may be heard by the Supreme Court in early December. In the event Brexit goes for parliamentary vote, both elected (“the Commons”) and unelected (“the House of Lords”) chambers of the Parliament may have the chance to review it and offer the matter the utmost scrutiny, which may ensure a better final agreement for the citizens of the UK.
While moving ahead to deliver the determination of the people may be respectable, transparency and accountability from the government’s part and a thorough parliamentary review may shape a superior Brexit deal, in line with the interests of the British nationals living in the UK and abroad, as well as British businesses catering to internal and foreign markets.
How may the High Court’s decision shape the Brexit negotiations?