The high court decision that the British government cannot trigger article 50 of the Lisbon Treaty without a vote in parliament creates a major headache for Theresa May as she prepares for Brexit negotiations.
However, MPs are unlikely to block the start of formal withdrawal negotiations, and political pressures could inhibit any parliamentary move to prevent a “hard Brexit”.
The government argued that it was entitled to withdraw from the EU without parliamentary approval because the British constitution gave the executive power to negotiate international treaties.
The court ruled that the 1972 European Communities Act, which brought the UK into the Common Market, authorised integration which went far beyond international relations, affecting domestic law and introducing new rights for citizens.
The judges concluded that, by triggering article 50, the government would set in motion an irreversible process of withdrawal from the EU which would affect the rights of citizens.
“Virtually everyone in the UK or with British citizenship will . . . have their legal rights affected if notice is given under article 50,” the judges said.
“Once a notice is given, it will inevitably result in the complete withdrawal of the UK from membership of the EU and from the relevant treaties at the end of the two-year period, subject only to a [unanimous] agreement on an extension.”
Withdrawal agreement
Lawyers disagree over whether the article 50 process is indeed irreversible but the government told the court that it accepted that once the withdrawal negotiations began, they cannot be halted.
The court found that, since the government would negotiate the terms of any withdrawal agreement, it can pick and choose which existing EU rights, if any, to preserve – if it can persuade the European Council to agree – and which to remove.
At the end of the two-year negotiation, MPs could be presented with a take-it-or-leave-it choice of accepting the government’s deal or allowing the UK to crash out of the EU with no deal at all.
“Parliament’s consideration of any withdrawal agreement under the procedure . . . would thus be constrained by the knowledge that if it did not approve ratification of it, however inadequate it might believe the withdrawal agreement to be, the alternative would likely eventually to be complete removal of all rights for the UK and British citizens under the EU treaties,” the judges said.
Unless the supreme court overturns the decision next month, May will need parliamentary approval before she informs other EU leaders that she wants to start the article 50 withdrawal process. Brexit secretary David Davis said this would require primary legislation, as opposed to a simple motion requiring an up-down vote.
Negotiating mandate
Primary legislation can be amended, opening up the prospect of MPs seeking to constrain the government’s negotiating mandate with the EU. More than two-thirds of MPs were opposed to Brexit before the referendum, including more than half of Conservative MPs, and there is also a clear “Remain” majority in the House of Lords too.
Since the referendum, however, both main parties have accepted that the British people have chosen to leave the EU, so a simple vote to block Brexit is highly improbable. Where MPs may see some room for manoeuvre is around the meaning of Brexit and what sort of relationship Britain should seek with the EU after it leaves.
Some anti-Brexit Conservatives, many Labour MPs, the Liberal Democrats and the Scottish Nationalists, along with many peers, want Britain to remain in the European single market and the customs union after Brexit.
There has, however, been a shift within both main parties since the referendum, with many former Remain campaigners now insisting that controlling immigration must trump single market membership in the negotiations.
This reflects the political reality that about 70 per cent of English constituencies voted to leave the EU, with the majority for Remain a slim one in many more. Polling since the referendum suggests that few who voted for Brexit regret their vote, although some Remainers who failed to vote now wish they had done so.
Public anger
The key arguments for Brexit – controlling immigration, stopping contributions to the EU budget and escaping from the jurisdiction of the European Court of Justice – remain persuasive for many voters. Brexiteers and their supporters in the media are alert to any move they perceive as a betrayal of the referendum vote or, as
Nigel Farage
put it on Thursday, a “half-Brexit”.
“I worry that a betrayal may be near at hand,” he said. “I now fear that every attempt will be made to block or delay the triggering of article 50. If this is so, they have no idea of the level of public anger they will provoke.”
Instead of seeking to lay down specific policy guidelines for the prime minister ahead of article 50 negotiations, MPs could demand that she reports back to parliament regularly during the talks.
One option open to May is to call a snap general election, with a manifesto commitment to triggering article 50 and giving the government a free hand in negotiations. Polls suggest she would win with an enhanced majority, as Labour remains weak and Ukip is in meltdown.
With a two-year limit on article 50 negotiations, however, May can ill afford the time for an election campaign, especially since the talks will stall twice next year for the French and German general elections.
Besides, although she is riding high in the polls right now in the face of a derided opposition, May knows after this extraordinary year in British politics that nothing is certain and any shock is possible.