Brexit and the British High Court Ruling: What Does This Mean?

Written by: Daniël Eloff

On 3 November, 2016 the Lord Chief Justice of the British High Court ruled that in order for Brexit to possibly proceed, the motion of triggering Article 50 of the Lisbon Treaty – to officially inform the European Union of leaving the supra-national body – has to be debated in the House of Commons. This will most likely delay the process of Britain leaving the European Union past the March 2017 date that was set by Prime Minister Theresa May and her government.

The British government argued that there was no need for the motion to be brought to Parliament for debating. The Court ruled that this goes against the “fundamental rule of the United Kingdom constitution” that gives sovereign power to Parliament. The High Court’s decision does not in any way overrule the referendum result. Instead, it simply says that the power to decide whether or not the process of leaving the European Union can be triggered does not lie with May or her government, but with the Parliament. The three judges, including Lord Chief Justice Thomas of Cwmgiedd, found that there was no constitutional convention of the royal prerogative – powers used by ministers – being used in legislation relating to the European Union. The Court found that by triggering Article 50, it would change the lives and rights of all United Kingdom citizens drastically and that only the sovereign power of the British Parliament has the power to do so under UK constitutional law.

This legal challenge does not alter the referendum result. The Court was wary of being perceived to be taking sides on this contentious issue. The case was called a “pure question of law” and that the merits of leaving or staying in the European Union was a political matter that is to be dealt with through the appropriate channels and on the apt forums.

So what happens next?

Prime Minister May and the government has already appealed the matter which will then be heard later next month. On appeal, the case is referred to the Supreme Court of the United Kingdom, after which another opportunity to appeal exists. Quite ironically, upon a second appeal, the matter could be handed to the European Court of Justice, which still remains the highest judicature in certain matters while the United Kingdom is still part of the European Union.

Although Brexit still seems most likely to materialise, the decision now has to go through both houses of Parliament and the negotiation process by Prime Minister May and her team will come under greater scrutiny.

Whether the United Kingdom remains part of the European Union or not is still uncertain and unclear. All likely scenarios, ranging from a full-blown exit to a complete maintaining of the United Kingdom in the European Union, remain possible.

What should be mentioned, though, is the effects of the United Kingdom Parliament going against the wishes that were made clear during the 23 June 2016 Brexit referendum results. It would most likely be quite unpopular for Parliament to go against what the majority of British citizens voted for, especially considering that the economy has been doing relatively well since the referendum.

Daniël Eloff is an admitted attorney and the Principal Legal Advisor to the Executive Mayor of Cape Town.