European Court of Justice May Ultimately Decide on Brexit

In the September edition of E-Briefings, we examined how under the UK constitution the British parliament is sovereignand referendums are generally not binding in the UK. We also discussed how the pro-remain majority in the House of Commons are considering using their Commons majority to keep Britain inside the EU single market.

The UK Supreme Court is now hearing the UK Government’s appeal after the High Court insisted Theresa May must get parliamentary approval before triggering Article 50.

The High Court ruled parliament must approve triggering Article 50, the process by which the UK begins withdrawal from the European Union following the referendum result which saw Britain vote to leave.

The judges’ decision derailed Teresa May’s proposal that she would trigger Article 50 this Spring.  If the same decision is upheld by the Supreme Court this week, it is expected to be a major blow to her authority and could considerably delay Brexit.

On Wednesday, 26th October a UK government minister revealed MPs could block a Brexit deal between Britain and the EU indefinitely. David Jones, a junior minister in the Department for Exiting the EU, indicated that the upcoming Brexit negotiations with Brussels could result in the proposal of a new treaty between the UK and the EU. Minister Jones outlined how in such a scenario, the Government would be obliged to permit both the House of Lords and House of Commons to examine the proposed treaty before signing it.

Appearing before the House of Commons’ European Scrutiny Committee, David Jones stated that the Government will fully comply with the obligations set out in Part 2 Section 20 of the Constitutional Reform and Governance Act 2010 (CRAG) for ratifying new treaties.  The Act notes although there is no legal requirement for a debate or vote on a proposed treaty, the Commons can block its ratification ‘indefinitely’.

This is done through a series of repeated 21day sitting periods in which MPs return to reconsider the treaty, beginning with the first sitting day after the Minister has laid before Parliament a copy of the treaty.

Also, the Act states that there is no limit on the number of times the process can be repeated, meaning the House of Commons could continue to repeatedly block ratification.

With a pro-remain majority in the House of Commons of 454 MPs to 147, the Government have to be concerned that these MPs will use their Commons majority to keep Britain inside the EU single market.

Also, the House of Lords’ Constitution Committee has previously stated that the UK government should not activate Article 50, without approval from both houses of parliament.

A group of Tory Lords have signalled that they may hinder the progress or indeed block Brexit legislation. In August, Tory peer Baroness, Patience Wheatcroft suggested that the House of Lords could withhold approval of Article 50, the mechanism for leaving the European Union. Stating that she “did not want the Lords to stand in the way of the UK leaving the EU at the moment, but added: “However, if it comes to a bill, I think the Lords might actually delay things. I think there’s a majority in the Lords for remaining.”

It is more likely that if MPs are granted an opportunity to vote on triggering Article 50, the Bill will not be defeated due to the expectation that MPs must respect the national vote.  However, some MPs could insist on toning down aspects of a “hard Brexit”, to reduce its impact.

The case in the Supreme Court is expected to last four days, concluding on Thursday.  The judgment is expected early in the New Year.

Ironically, if the UK government loses its challenge, the case will then be referred to the European Court of Justice, which may end up ruling on how Britain exits the EU.  If there is an appeal to the European Court of Justice it will not be heard until the middle of 2017 at the earliest, which will upset the UK government’s Brexit Schedule.