A bimonthly magazine on international affairs, edited in Germany's capital

Carry On Brexiting

The High Court ruling in support of parliamentary sovereignty is giving Theresa May’s government a headache or two.

Three judges have ruled that Brexit can only be triggered by a vote of the UK Parliament. The decision has huge implications – not just on how Britain may (or may not) leave the European Union.


© REUTERS/Peter Nicholls

On Thursday morning, a UK high court ruled that British Prime Minister Theresa May cannot unilaterally remove the United Kingdom from the European Union. She must get permission from the sovereign British Parliament.

May had argued that the June referendum gave her government the authority to unilaterally trigger the EU Lisbon treaty’s Article 50 – the start of the leaving process. But the referendum was in fact a non-binding poll with no legal authority; a suggestion from the public, if you will.

“The most fundamental rule of the UK constitution is that parliament is sovereign,” the three judges led by Lord Thomas of Cwmgiedd stated in their ruling. May will appeal the decision to the Supreme Court, which will hold a hearing on December 7.

The outcome of this case was uncertain because the “constitution” that the judge referred to doesn’t actually exist. The UK is the only democracy in the world without a written constitution, operating instead on a system of precedents and judicial rulings.

That means the ruling will have a major impact on the future of the UK in two ways.

The process of diluting the parliament’s power in favor of the government has long been controversial in the UK. The issue flared up during the Iraq War and later over the intervention in Libya, when there was a question over whether Tony Blair and David Cameron could go to war without a parliamentary vote. In the end, votes were held for both (unlike in the US).

The ruling will have an impact on future prime ministers for many years to come. It has drawn a line in the sand: no matter how things have been drifting in recent years, the Parliament is still sovereign above the prime minister’s government.

If the ruling is upheld after the December 7 hearing, it means that future prime ministers cannot bypass the Parliament on major issues simply by holding public referenda – which, until recently, have been viewed with mistrust. Post-war Prime Minister Clement Attlee called them “a device of dictators and demagogues,” a quote later echoed by Margaret Thatcher.

A “Brexit Election” Looms

So why was May trying to skirt UK political convention by bypassing the parliament? For starters, she’s worried that MPs could vote differently than the public, given that the vast majority doesn’t want to leave the EU. That would be awkward, to say the least.

A vote against Brexit would almost certainly trigger a collapse of May’s government and a new general election. Such an election would be fought on “remain” or “leave” grounds, with each party, and perhaps each MP, choosing a side. If a majority of “remain” MPs are elected, it would be seen as the public changing its mind – giving the Parliament a mandate to reject the referendum result.

But a new election would come with great risk. The public might be enraged by the notion of MPs thwarting a referendum result. Given that the opposition Labor Party is in a complete shambles at the moment, it could be reduced to holding only a handful of seats.

The public could then elect a host of new pro-Brexit MPs, and UKIP – which has only one MP right now – could become one of the largest parties in parliament (perhaps even the official opposition). And so in the end, calling an early election may produce a clear majority for triggering Article 50.

The debate will be bruising, which is the second reason May did not want to hold the vote. A majority within her own Conservative Party (including May herself) did not support Brexit and those MPs may see this vote as an opportunity to insist that May go for a “soft Brexit” – nominally leaving the EU but still abiding by all its rules and paying into its budget (as is the case with Norway and Switzerland).

Such a fight could reignite the bitter divisions that exist within the Conservative Party on the issue of Europe, and could cause May’s government to collapse even without a vote rejecting Brexit.

May Must Show Her Hand

What will the ruling mean for London’s Brexit negotiations? The business community clearly believes it makes a Brexit less likely – the pound rose immediately after the ruling, dipped when the government announced it is appealing, and is now rising again. At the very least, they believe that a “hard Brexit”, in which the UK cuts itself off from the European single market, is now unlikely.

The possibility of a vote in Parliament before Article 50 is triggered will mean MPs will demand to know May’s plans for negotiations with the other 27 EU member states – particularly since many believe she doesn’t actually have a plan.

If indeed she doesn’t, it would come out in such a debate. If she does, she will be forced to reveal it to the world before the negotiations even start. This will put her in an even weaker position than she is already in, and makes the likelihood of the UK leaving the EU on any favorable terms unlikely.

MPs are now starting to understand this reality. That’s why they may insert a killer clause into any Article 50 authorization: Once the negotiations are concluded in two years, Parliament must get a second vote on whether to approve the deal.

The catch is, by that point it’s not actually up to the British Parliament any more. It would be up to the European Parliament, and the 27 other parliaments of Europe. Article 50 is in many ways the point of no return. Under EU law, the two-year leaving process cannot be stopped unless by consent of both the EU and the withdrawing country.

If the Parliament rejects a bad deal for Britain, the other EU states can play hardball and the UK would be left without leverage. So while it might be tempting for MPs to avoid rejecting the public vote now by calling for a vote in two years, the reality is this may be their only chance to stop Brexit. Will they take it?