Brexit, Article 50 and the Supreme Court ruling: how the government made its own life more difficult

Dr Christopher Huggins
Teaching Fellow in European Politics


Yesterday the Supreme Court delivered its judgement on the government’s appeal in the Article 50 case in what was billed as one of the most significant constitutional law cases in generations. The verdict, of course, has wide ranging constitutional law implications. But there are also significant political implications for how the government will be able to proceed with Brexit.

It’s important to note that for all the hype around Brexit and the EU referendum, the primary concern of the case was a matter of constitutional law. Indeed, Brexit and the referendum barely got a mention in the hearing in December. The verdict reaffirms the long-established constitutional principle that it is parliament that makes the law and that government cannot use its executive powers (the Prerogative) to change the law without parliament’s authorization. The Supreme Court is the highest court in the land, and as such the government has no other option but to accept the verdict. In this way the Supreme Court has successfully performed its role as an independent check on executive authority, something which should be valued by all those who support the basic principles of democracy. The verdict should also be celebrated by those who campaigned during the EU referendum on the message that British laws should be made by a sovereign British parliament. In the words of legal commentator David Allen Green, it is evidence that “the constitution is working”.

In its response to the verdict, the government said it was “disappointed”, but it would nevertheless respect the outcome and get on with the job of delivering Brexit, by seeking authorization from parliament in the form of a short bill. Unlike with the High Court verdict, the government was also quick to pre-empt a hostile press reaction and re-affirm its respect for an independent judiciary. The government’s disappointment, however, is self-inflicted. Indeed, one of the most striking things about the case was that it could have been avoided entirely. There were two missed opportunities here.

Firstly, the legal challenge was launched due to ambiguity in 2015 European Union Referendum Act. While the Act permitted the referendum to take place, it says absolutely nothing about how the government or parliament should respond to the result. Had the Act bound parliament and the government to the result and, in the event of a leave vote, authorized the government to invoke Article 50 of the Lisbon Treaty, then the courts’ involvement in Brexit (or at least the triggering of Article 50) could have been avoided. Indeed it says something about the complacency of the Cameron government and parliament, and the fact neither expected a leave vote, that such provisions were omitted.

Secondly, had Theresa May simply accepted the decision of the High Court in November 2016 and delivered the (still to be revealed) short bill authorizing the government to invoke Article 50, then the government would probably have the necessary authorization by now, and would be on course to meet its March 2017 deadline. By appealing the High Court’s decision rather than “getting on with the job of Brexit”, the government has frustrated and delayed its own progress, and made it more difficult to meet its self-imposed March 2017 deadline for Article 50 notification.

No article 50 notification can take place until an Act of Parliament authorizing it is passed. Any attempt by the government to notify before this would be unlawful. The government insists it can still meet its March 2017 timetable, but its job would have been much easier had it introduced such a bill in November. Back then there was more political momentum behind Brexit, at least among parliamentarians eager to respect the ‘will of the people’. The form of the bill (long or short, simple or with bells and whistles attached) is up to parliament, but the government could have used this momentum to rush the bill through and ensure it broadly reflected its own wishes.

The likelihood of parliament rejecting an Article 50 trigger bill outright is incredibly low. But parliamentarians of all political colours will now seek to seek to add amendments or bind the government to certain conditions, such as the publication of a Brexit plan in the form of a White Paper (a provision the government has just accepted). This is especially the case since Theresa May’s speech last week outlining a 12-point (but still vague) plan for Brexit, which has not been universally accepted by MPs. This all risks delaying the bill’s passage, adding to the government’s already heavy workload and binding the government to any provisions that are enacted. In effect the government risks losing control of the Brexit agenda. And for those seeking clarity on what Brexit means, it has the potential to create more confusion and uncertainty.

The other implication of the Supreme Court ruling goes beyond Brexit and the EU referendum. That is in re-affirming that parliament is sovereign and that the government cannot independently make, unmake or amend the law, the ruling is used as a point of reference for other cases where executive power is challenged. This, potentially, limits the scope of government authority. Therefore in appealing, and losing, the government has potentially shot itself in the foot and limited its own capacity of act independently of parliament.

So, in appealing the High Court verdict the government has deliberately delayed its own Brexit plans, made it more difficult to get Article 50 notification on its own terms and, potentially, set a precedent which limits government authority and capacity for years to come. As stated above, all of this could have been avoided. In appealing, the government made a gamble which did not pay off.
Dr Christopher Huggins is a Teaching Fellow in European Politics in the School of Politics, Philosophy, International Relations and Environment at Keele University. His research focuses on the politics of the European Union and British politics. He has an  emphasis on the Europeanization of sub-national government and how local authorities actively engage with the European Union. More about Chris’ research and teaching can be found here.

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