November 9, 2016
A significant measure of uncertainty was injected into the Brexit last week following the November 3 UK High Court’s ruling that the Government cannot trigger Article 50 of the Lisbon Treaty without some action by Parliament. To do so, according to the High Court, would allow the Government to modify domestic law without the direct involvement of Parliament, something that is unconstitutional under British law. Parliament has enacted laws that incorporate EU law directly into British law, and triggering Article 50 would effectively repeal those EU laws incorporated into British law.
The High Court’s decision is well-reasoned, and barring a completely new and persuasive government argument, the UK’s highest court, the Supreme Court, will likely uphold the High Court’s decision when it hears the case in December. While Prime Minister Theresa May has maintained the government’s intention to trigger Article 50 by March 2017, the anticipated Supreme Court decision will make keeping to that timeline extremely challenging and fraught with much greater turbulence.
First of all, while upholding the High Court’s ruling, the Supreme Court may rule that some issue in the case turns on EU law (for example, whether the UK could trigger Article 50 and then later decide to remain in the EU prior to actually leaving). If so, it could refer part of the matter to the European Court of Justice to resolve that question, even further complicating the process.
Secondly, a version of Brexit requiring a Parliamentary vote on Article 50 automatically reinjects British domestic politics into the process. As a result, Theresa May will be more likely to call early elections to consolidate power and prepare for the vote in Parliament. And Parliament will almost certainly use some of the process of voting (which it could do through the complicated process of passing a Bill or through a simpler “yes or no” resolution) on Article 50 to extract concessions (read: “softer” Brexit) from the Government.
It is too soon to say for sure whether Parliament will vote on Article 50. But the High Court’s decision offers a warning to those potentially affected by Brexit to consider what the very complicated way forward means for their interests. Experience with British politics and the best available information will be critical. Ankura Consulting, LLC has forged an experienced team focused on Brexit, and is well poised to rapidly anticipate, recognize and analyze developments.