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Whilst no-one thought Brexit would be easy, few could have imagined that the vote to leave the EU would stir up so much constitutional furore here at home. However, as is becoming clear, the government had bargained on a vote to remain and hadn’t given much, if any, thought to the parliamentary mechanisms that would be needed should the vote go in favour of Brexit.
Could the High Court ruling scupper Brexit?
The High Court ruling is a massive blow for the government. Theresa May had said that she wanted to start Brexit talks before the end of March 2017. However, the ruling from the High Court on 3rd November means that MPs in the Commons and peers in the Lords must be consulted and given the opportunity to vote on the on the decision, potentially derailing her plans.
Both sides of the argument
Lawyers for the government had argued that prerogative powers meant that the will of the people should prevail, and as there had been a clear vote in favour of leaving, then this was sufficient mandate for the government to start exit negotiations.
However, the Lord Chief Justice found that “that the government does not have power under the crown’s prerogative to give notice to article 50 for the UK to withdraw from the European Union.”
How MPs view the ruling
Much hangs on whether a simple substantive vote in the House of Commons could be deemed sufficient consultation for the exit negotiations to begin. However, the ruling states that a parliamentary motion is not sufficient.
David Davis, the Brexit Secretary, believes the ruling presumes that an act of parliament would be needed and this would have to go through both the Commons and the Lords.
Whilst parliamentarians are unlikely to vote to block Brexit, given that 52% of the electorate showed they were in favour, their involvement looks set to slow the process down. The need for legislation would give the opportunity for MPs to debate the issues, and potentially disrupt the Brexit process by demanding that the government provides details of its negotiating stance and strategy.
Not surprisingly, the ruling has caused considerable excitement amongst MPs on both sides of the argument. Some MPs who voted to remain in the EU view this decision as an opportunity to forestall any plans for a ‘hard Brexit’. Many who voted to leave are understandably perturbed. Several MPs have already called for an early general election to obtain a fresh mandate from voters.
The appeal process
Theresa May has said she is “confident” that the government will win its appeal against the High Court ruling when it takes its case to the Supreme Court in early December.
In what many see as an ironic twist, as this issues involves European law the government could of course take its case to the European Court of Justice.
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