Brexit - the potential next steps?

June 2016 as we all know, saw the majority of the UK populace vote to leave the EU. This left the UK Government pondering on how exactly to go about this. On paper, the process is simple: the Government gives notice under Article 50, negotiations commence and two years later the UK stands outside of the EU.

However, the first stumbling block seems to have been encountered on stage one of that three-step process. Does the Government have the power to trigger Article 50 without a parliamentary vote, or an Act of Parliament? On the Yes side of this particular argument you have the viewpoint that the PM can do just this under the royal prerogative which allows the Queen to make and unmake international treaties on behalf of the UK. The opposing view is that the royal prerogative does not apply as the action would result in fundamental changes to UK law. On these grounds, a case was brought to the High Court to require a parliamentary vote on whether Theresa May should enact Article 50.

The Remain camp’s arguments were that:
• The Queen’s prerogative powers cannot be used to unmake an international treaty where it would result in a change to the law of the UK.

• There are no express words in any UK statute that allow the royal prerogative to be used to change how EU law is implemented in the UK.

• Once Article 50 has been triggered, the process of leaving the EU becomes unstoppable. And therefore, triggering Article 50 will eventually and inevitably result in the erosion of certain rights for UK citizens. For that reason, leaving the EU would change the law of the UK.

In response, the Leave supporters outlined the following points:
• The Queen’s prerogative powers can be used to unmake any international treaty (including the EU Treaty), even where it results in a change in the law of the UK.

• There are no express words in any UK statutes that prevent the royal prerogative being used in this way.

• And once Article 50 is triggered, the Government would subsequently discuss Brexit in Parliament and the terms of the UK’s departure would be subject to Parliamentary ratification in due course.

On 3 November, the High Court delivered its verdict.

The Court found in favour of the Remain camp, stating in clear terms that the PM could not trigger Article 50 without a Parliamentary vote giving her mandate to do so. The Court was especially careful to stress that, had the Referendum Act included wording to specifically empower the PM to trigger Article 50 as a direct result of the vote, then royal prerogative would apply, but as the Act did not include such wording, that power was not implied within the referendum result.

Regardless of personal viewpoint, for or against, leave or remain, we believe that this was absolutely the correct decision – when taken from a legal stance. The public backlash and media-led vitriol directed towards the three judges was unfair. The wording of their decision was eloquent, well-reasoned and legally correct. 

Following the High Court decision the Supreme Court has granted the Government the right to appeal. The hearing for the appeal will commence on 5 December and is anticipated to be a four-day hearing, however it is possible that the judgement of the hearing will be delayed until after Christmas.

The Government’s appeal is based on the argument that there is no legislation that prohibits the triggering of Article 50 by royal prerogative. The High Court’s decision was made on the grounds that there was nothing to stipulate that Article 50 can be triggered under the same royal prerogative. It’s clear from this that UK legislation was not drafted or enacted with the UK’s departure from the EU in mind, and the differing viewpoints clearly both have sufficient weight to require such court processes.

As it stands, the High Court decision means that Theresa May will need Parliament’s backing before triggering Brexit, but if the appeal is upheld, she will not.

Speculation is rife that Theresa May has prepared a short and simple Act of Parliament authorising the commencement of proceedings to formally leave the EU. This would likely be used should the Government lose their appeal. It is expected that this act should pass relatively easily through the House of Commons, but that passage through the House of Lords would be more difficult.

Controversially, one Supreme Court Judge, Lady Justice Hale, has publicly questioned whether this is sufficient. The preposition here being that simply authorising the triggering of Article 50 is not enough, and Parliament must agree on what happens next – i.e. Parliament must have agreed the entire text of the Great Repeal Bill before Theresa May is permitted to enact Article 50.

There are eleven judges on the Supreme Court in total, and if they were to agree with Lady Justice Hale, then Brexit could be delayed by two years or even more – meaning that the UK’s departure from the EU may not occur until 2021 or beyond.

Although this could be considered an initial victory for the Remain camp, it will not derail the process. Either the Supreme Court grants the PM authority to use royal prerogative, in which case she triggers Article 50, or it stipulates a requirement for a parliamentary vote. In the event of a vote, MPs should, in theory, vote in line with their constituents’ wishes and ratify the decision to leave.

Yes, the process may become more complex, with concessions being made by the PM en route, but if the majority of 650 MPs sanction power to Theresa May, with their input, this will more than likely result in a more positive exit deal. Negotiations that have the input of all 650 MPs is the most democratic way to agree terms, and if some of those MPs were strong supporters of Remain, then surely that will influence the terms in the UK’s favour.

The twist in the tail? Should the Supreme Court find in the Government’s favour, the Remain campaigners would have one other recourse left. A further appeal… ironically to the European Court of Justice.

Imagine the media firestorm that would erupt should that Court decide against the Government…

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.