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Following the Government’s defeat in the High Court over its exclusive right to trigger Article 50, the EU’s exit clause, what could happen next? Stephen Booth assesses the fallout.
3 November 2016
Firstly, Prime Minister Theresa May’s plan to trigger Article 50 by the end of March 2017 is still possible. The Government has said it will appeal to the Supreme Court, which is expected to hear the case on 7 December and presumably rule by early January. If the Government wins its appeal, it can continue with Plan A and trigger Article 50 of its own accord.
However, there is a very real chance that the Government could lose again on appeal. This would mean Parliament will vote on whether Article 50 can be triggered.
Some have argued that, since a legal fight was always a possibility, why didn’t the Government head this off early by calling a simple parliamentary vote on a motion to trigger Article 50 and move on? Well, the reasoning of today’s ruling illustrates that, if the claimants’ argument holds (which regards rights stemming from EU membership set down in parliamentary legislation), the courts were never likely to be satisfied by anything short of legislation to trigger Article 50. Therefore, a simple vote on a motion to trigger Article 50 could have resulted in a similar challenge to that we are witnessing now.
The obvious reason for the Government to want to avoid enacting legislation to trigger Article 50 is that this can be a time-consuming process, frustrated by delays or amendments within either the House of Commons or the House of Lords. This is now the prospect facing the Government if it loses on appeal, and therefore its end-March deadline could be at risk.
It is very hard to believe that a majority of MPs in the House of Commons would actually move to ‘block’ Brexit by preventing the Government triggering Article 50, especially having voted to give the public the opportunity to vote to leave the EU in the referendum. Even those MPs who have publicly backed the legal challenge have said they do not intend to prevent Brexit or reverse the referendum result. Despite there being a majority of MPs for Remain going into the referendum, as research by political scientist Chris Hanretty has noted, “421 out of 574 English and Welsh constituencies probably voted to Leave.” MPs in both parties and on both sides of the referendum campaign are acutely aware of this.
The same is probably true for the House of Lords, which would create a full-blown constitutional crisis if it opposed Article 50 outright. Nevertheless, this begs the question what those MPs or Lords which have most vociferously campaigned for parliamentary approval of Article 50 intend to do.
Many MPs have been demanding more information about the Government’s negotiating priorities and greater scrutiny by Parliament of the Article 50 negotiations once they are underway. This is likely to be the focus of any parliamentary tussles over legislation to trigger Article 50, with MPs and Lords seeking to amend the Bill to give them greater and more formal powers to scrutinise the process. Some may also seek to commit the Government to domestic legislation to guarantee various things, for example the rights of EU nationals in the UK. And, once this can of worms is opened, don’t be surprised if some MPs who backed Leave also come up with their own demands.
Parliament will be on much weaker ground, though, when it comes to fundamental questions about what Brexit means – whether the UK Government seeks to remain in the EU’s customs union or single market, for example. Parliament can demand what it likes about its role in scrutinising the process of the Article 50 talks but it cannot mandate any particular outcome. Some in Parliament have insisted that membership of the single market must be maintained at all costs – and a minority of MPs may seek to do this, despite how badly this might be perceived by much of the electorate.
However, this is still going to be a negotiation with the rest of the EU and Parliament cannot determine the interests or negotiating positions of third parties elsewhere in Europe. Ultimately, therefore, the Government cannot be bound to any particular negotiating mandate or outcome. Parliament will likely seek, and get, a vote on the final package negotiated with the EU but this will effectively be a ‘take it or leave it’ vote. And, as has been argued by all sides in today’s court case, once Article 50 is triggered, ‘out’ means ‘out’. The dynamic is such that there would be no going back to the status quo and a vote to reject any new deal with the EU would mean leaving on WTO terms.
Ultimately, if the legislation required to enact Article 50 is frustrated or became protracted, Theresa May could be forced to call a General Election. This would certainly mean missing the end of March 2017 deadline. But it would also mean that any MPs seen to be blocking the referendum result would find it very hard to keep hold of their seats and this is why it is likely that an Article 50 Bill would be passed.