The ruling said that parliamentary sovereignty was the most fundamental principle in British law Credit: SJHayTov/Getty Images
The High Court in Britain ruled this morning that the UK cannot trigger Article 50 to withdraw from the European Union without the consent of parliament.
Theresa May’s government had argued that it had the power to make and break international treaties under the royal prerogative, a power officially in the hands of the Queen but used in practice by ministers allowing them to circumvent parliament in certain circumstances.
The prime minister had said that it was “up to the government to trigger Article 50,” a clause in the Lisbon Treaty that can be used to give the EU official notice that a nation will withdraw. Article 50 has not been tested under law but it is believed to be irreversible once invoked and sets a two-year deadline for withdrawal, whether new agreements have been reached or not, from the time it is declared.
A “people’s challenge” to the government, led by Gina Miller, an investment banker, argued that the royal prerogative could not be used to remove rights from citizens – such as the right to appeal to the European Court of Human Rights, or the right to free movement within Europe, both of which will be lost when the UK leaves the EU, a move known as Brexit.
The government’s defence, led by Jeremy Wright, the attorney-general, was that the challenge was an attempt to subvert the will of the British people as established by the referendum in June when the UK voted by 51.9 per cent in favour of leaving the EU.
Britain and Europe have been thrown into confusion by the vote because although it made the decision to leave the EU it said nothing about the terms on which the withdrawal would be made.
Sterling rose against both the euro and the dollar after the ruling was announced, but the recovery is not expected to last because uncertainty over Britain’s future will continue. It is expected that when Article 50 is finally triggered the pound will fall to a record low.
Mrs May’s plan to invoke Article 50 by March, meaning that the UK would leave the EU by early 2019, are now in question. The obligation to trigger Article 50 by act of parliament will allow MPs to scrutinise the government’s plans, which have until now been made largely behind closed doors, potentially leading to lengthy delays.
It is thought likely that the bill to invoke Article 50 will be passed even though the majority of MPs were against leaving the EU, because most have since accepted the decision of the public. However, resistance is expected from the Westminster MPs for Scotland and Northern Ireland and possibly from the devolved governments of those regions, both of which voted overwhelmingly to stay in the EU.
The House of Lords has the power to block the bill but is not thought likely to use it; the second chamber may, however, return it to the House of Commons with amendments, increasing the potential for delays and making the schedule set out by Mrs May all but unsustainable.
The government has already indicated that it will challenge today’s ruling at the Supreme Court, although the verdict of the three High Court judges is such that it seems unlikely an appeal will succeed.
In giving the ruling Lord Chief Justice John Thomas said: “The most fundamental rule of the UK’s constitution is that parliament is sovereign.”