In a stunning development this morning, a 3-judge panel of experienced U.K. judges has ruled that Prime Minister Theresa May’s plans to initiate withdrawal negotiations from the European Union by triggering an Article 50 notice under the Lisbon Treaty through the use of the “Sovereign Prerogative” would not be constitutional and that a Parliamentary authorization vote must occur prior to initiating any such action. What this means is that Parliament must have a full authorization vote prior to the Conservative Government triggering Article 50 and it can not be done merely by a decision of the PM. This is a major “separation of powers” issue for the U.K. and the “advisory” referendum in June does not supplant Parliamentary rights and previously enacted U.K. statutes embodying its membership in the EU, including the European Communities Act. This was a case — entitled the Peoples’ Challenge — that was brought earlier this summer to clarify the legal nature of the relationship between the U.K. and the EU and the rights of citizens living there.
It was a 3-judge panel decision, which is appealable to their new Supreme Court. It is likely to be appealed and will probably be heard in January 2017. But U.K. legal commentators are already opining that the clarity and nature of the panel’s opinion makes it difficult to imagine that the Supreme Court will overturn it. If appealed, the U.K. Supreme Court will be expected to rule prior to March, which is the date set by PM May for the triggering of Article 50 and the commencement of negotiations for a 2-year exit from the EU. At this stage, the People have prevailed! BREXIT is much less likely to happen now.
The basis of the legal decision is that the existing statutes, especially the European Communities Act, but also various human rights and other statutes, form part of the basis of the unwritten U.K. “constitution” — affording rights to citizens that cannot be abrogated merely by the PM deciding to do so. Rather, Parliament is sovereign in the U.K. and its Acts can not be undone unless done by Parliament. The government has been arguing since June that they had the right to trigger Article 50 by use of the executive branch power inherent in the Crown (on the basis of advice from Ministers) and could do so merely by keeping Parliament informed of their actions. Then, a Parliamentary vote (presumably 2 years later) could be held to approve whatever the government negotiated with the EU. Under the court’s ruling, what first must occur is that Parliament must authorize the triggering of Article 50 by means of a vote — which would include both the Commons and the Lords.
What this means is that BREXIT opponents will have an opportunity to whip votes in both Houses and vote the whole thing down prior to May taking any executive action. There are opponents of BREXIT in all parties and the assumption has been that May doesn’t have the votes to force an Article 50 action in both Houses. She conceivably might be able to get it through the Commons — by pressuring heretofore anti-Brexit Tories to support the government, but getting it through the Lords will be more difficult because her political ability to pressure them is far less than with MP’s in the Commons. Whatever — it means that the legislative power is paramount and that the elected representatives are sovereign and not the government and not the advisory referendum voters.
The Pound is already rebounding substantially — it had fallen 21% since the June vote. The EU is now NOT facing the likelihood of a U.K. exit in the near term. It’s still a political issue, obviously and will be discussed and debated by the citizenry and the MP’s, but it will be done so as a normal legislative matter; not as an action that can be initiated merely by the PM. The ironic thing is that the pro-BREXITERS were insisting that they wanted the U.K. Parliament to be sovereign in the U.K> rather than the European Parliament in Brussels but were not willing to submit to a Parliamentary vote prior to commencing the withdrawal negotiations.
Reaction from the government and relevant parties is still coming in, but this is a MAJOR legal development changing the whole nature of the BREXIT issue.