The UK High Court ruled on November 3 that Article 50 divorce process for leaving the EU requires a vote by parliament. The judgment, now subject to appeal, rests on the argument that “fundamental rights” had been bestowed on them after Britain joined the EU and the European Communities Act 1972 was passed by parliament. The government could not now “unilaterally” take away these rights, which is what would happen if Article 50 were triggered and Britain left the EU, according to a report in the Financial Times.
In the House of Commons, there were about 480 MPs in favour of the UK remaining in the EU just before the Brexit referendum compared with 150 opposed. The House of Lords was also highly supportive of the Remain camp, the newspaper article adds.
If the ruling is eventually upheld, the sheer numbers would mean that Brexit may well not happen after all, as I predicted much earlier in my blog, which is re-posted below with updates before the High Court ruling.
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Preamble
The sheer scale and complexity of Article 50 negotiations for the UK to leave the EU discourages a leap in the dark. Once Article 50 is triggered, the clock will start to tick to the UK's huge bargaining disadvantage. So the dynamics work in favour of more deliberation.
However, the longer it takes, the greater the sense of foreboding. And the more the unattractiveness of Brexit may become clear. It is quite possible that at some point after 2017, an early general election may have to be called to approve or reject a likely unsatisfactory bargain, which could effectively mean that Brexit may not happen.
Argument
My prognosis is reinforced by an insightful analysis on the UK Constitutional Law Association website by constitution lawyers Nick Barber, Fellow, Trinity College Oxford, Tom Hickman, Reader, UCL and barrister at Blackstone Chambers and Jeff King, Senior Lecturer in Law, UCL.
The authors explain clearly why in a robust constitutional democracy, the UK government cannot invoke Article 50 which triggers a 2-year automatic "guillotine" severing UK's membership of the European Union without the specific consent of the UK Parliament.
Section 2 of the UK's European Communities Act 1972 confers on UK citizens a host of rights, powers, liabilities, obligations and restrictions as part of the European Union. These cannot be removed unilaterally by the government, even supported by a Referendum, without prior consent of the Parliament.
The authors explain that "There are very good reasons for involving Parliament. With its broad range of representatives and peers, various pertinent committees with extensive evidence gathering powers, it is an institution that has the expertise and legitimacy to discuss the implications of various withdrawal options and any framework conditions or further approvals that Parliament may want to stipulate. The referendum was silent on the terms of withdrawal. Such terms should be matters for cross-party discussion in open Parliament rather than among the front bench of a (divided) single party in closed Cabinet meetings".
Moreover, the process of unravelling UK's many rights and obligations as a member of the European Union is likely to be highly complex and time-consuming. The analysis points out that "Parliament could conclude that it would be contrary to the national interest to invoke Article 50 whilst it is in the dark about what the key essentials of the new relationship with the EU are going to be, and without knowing what terms the EU is going to offer".
The authors contend that "If the UK seeks to obtain some form of framework agreement on key terms before invoking Article 50, once these terms are in place, Parliament could then trigger the Article 50 procedure to effect exit, perhaps with only details left to negotiate by the Government. Immediately upon an agreement being finalised the UK would no longer be part of the EU. This option would comply with the outcome of the referendum".
However, it begs the question whether the EU is prepared to or can in fact start negotiating a framework agreement with the UK without Article 50 being triggered first. The provisions of Article 50 are quite specific.
What is more, negotiating the un-bundling of UK's rights and obligations in the World Trade Organisation (WTO) from the European Union is just as complicated and time-consuming, if not more so. Click here Again, the WTO is in no position to promise the UK anything before the UK regains a separate identity outside the EU. Nor would any country within or outside the WTO be able to negotiate with the UK for any bilateral trade agreement absent such separate status.
Faced with this chicken-and-egg situation, Theresa May quite wisely appointed the three "Brexiteers" to handle this hot chestnut. As the EU is unlikely to allow the UK to eat its cake and have it at the same time, tough negotiations are likely on balancing access rights to the EU with core EU principles like freedom of movement of people, which happens to be the key sticking point of the "Leavers".
So the more both sides bandy key issues to test the waters, the more it will become clear to those who voted to leave that a final deal, even if one can be reached in time, could be very unpalatable. The more so, therefore, would there be demand for negotiating terms be first debated and authorised by the Parliament before Article 50 is triggered.
There is no legal compulsion as to how soon Article 50 must be triggered. Naturally the EU wants the UK to pull the trigger as soon as possible and a lot can be said about ending the uncertainty. But as the analysis points out, "uncertainty needs to be weighed against other imperatives, such as the need to comply with the UK’s constitutional requirements and the need to ensure that Brexit is effected consistently with the national interest". With all the to-ing and fro-ing, before we know it, the next general election date will not be far off.
The Fixed Term Parliament Act sets the date of the next general election in 2020. An early election is possible with a two-thirds majority support of MPs or by the government of the day engineering an artificial no-confidence vote on itself (which would be highly unlikely), according to an article in The Independent dated 12 July, 2016.
Either way, as remorse is already setting in and as the prospect of an unpalatable deal increasingly looms large, Theresa May, despite her initial promises to the contrary, may well be able to call an early general election to give her the mandate on whether to trigger Article 50 regardless or to abandon the exercise altogether. If so, after all the fuss and costs of uncertainty, Brexit may not happen after all.
My above prognosis, which was first mooted months ago, is consistent with what The Economist (8th October) outlined as what may appear implacable conundrums in securing an acceptable Brexit outcome in a protracted and highly-contentious multi-state and multi-dimensional process.
It also happens to chime with what Tony Blair has recently opined - "Right now there is one point and one point only to win: we should keep every option open. We’re a sovereign people. We can make up our mind; and we can change our mind. And whether we do, is up to us".
