Between a Rock and a Hard Brexit: The High Court's Article 50 Verdict

8 November 2016

The High Court verdict that the British Government cannot use Royal Prerogative powers to invoke Article 50, and must instead secure the approval of Parliament, was anticipated by those in the know (see DeHavilland's Brexit Bulletin of 18 October), but is no less momentous for that.

Barring an improbable reversal on appeal, Parliament will now have to give its approval before Article 50 can be triggered. This immediately drew the fury of prominent Leave campaigners, presumably wary of Parliament’s large Remain majority. However, these worries are likely to be misplaced. It seems more likely that the underlying concern of some of those criticising the decision is that it will remove the ability for the Government to refuse to divulge its objectives or strategy for the negotiations.

While most MPs voted to retain EU membership, the Government should be capable of building a majority to allow it to invoke Article 50 – provided it meets the concerns of MPs. Many Labour MPs representing constituencies which voted Leave will be wary of the challenge of UKIP, especially in the party's northern heartlands. While pro-European Conservatives may seek to extract concessions on the negotiating position, only those with their careers largely behind them (such as Ken Clarke) would resist even a "soft Brexit" position if the Government chose to impose a Three-Line Whip. These MPs would be unlikely to outnumber the Labour members who could in good conscience support such a stance.

Thus the likelihood of the Government being unable to get an authorisation to invoke Article 50 through the Commons is slim, and will only rise if it pursues a maximalist approach favoured by the most hard-line of Brexiteers. It is, though, already possible to see the broad outline of a deal which would be acceptable to the crucial bloc of MPs who backed Remain but are open to persuasion.

While the Government has said that the UK should not pursue a simple mimicry of another country's membership model, there are several precedents and options which could form the basis for a negotiating position Parliament would endorse. Switzerland and Norway lie outside the EU Customs Union, so can set their own trade policies, but both participate in the Single Market to varying degrees, though also have to accept free movement of people and an element of legal oversight by EU courts.

Canada, in contrast, has (eventually) secured a Free Trade Agreement, but despite being the most comprehensive FTA signed by the EU, this does not give Canada the level of access for services the UK would likely wish for. On free movement, Liechtenstein has secured quotas for EU migrants, though this may have something to do with it having a population the size of Salisbury. The fact that the point has been conceded to Liechtenstein – and perhaps also to Switzerland in the near future – may, however, prove important.

The Government will likely settle upon some combination of the above – inside the Single Market, outside the Customs Union, with some limitation on free movement – as its preferred initial negotiation position. It is important to note, however, that this does not mean it is necessarily obligated to stick to this in the course of negotiations.

If Theresa May or her senior ministers decide it is better to seek a deal outside the Single Market, for example (perhaps to regain control over immigration, budgetary contributions and the judiciary) there is no real reason why the Government should not change tack later. It would likely face criticism from MPs angered at it departing from the guidelines set by Parliament, but after Article 50 is triggered this would probably matter little, as the Government would already have complied with the High Court ruling. In any case, the negotiations will naturally take place behind closed doors and will be countered by the EU defending its own interests, so the Government could simply say that whatever Parliament approved was rejected by the EU.

The need to seek Parliamentary approval, therefore, need not bind the hands of the Government unduly, and will certainly enhance the democratic legitimacy of the process. MPs are now likely to determine the UK’s opening bid in negotiations, but will be able to do little beyond that while negotiations are underway. It is perhaps more important to consider whether MPs will impose a vote on the deal that results from talks with the EU – either a second Parliamentary vote or a second referendum.

The legal position around the triggering of Article 50 always appeared reasonably clear; the Government fought an uphill battle in opposing Parliamentary approval. However, there is far more uncertainty over what happens thereafter. If Article 50 cannot be reversed – if, once triggered, the UK is out, and all that remains is to settle how – any condition imposed by MPs on a second vote is meaningless. However, the Vienna Convention on the Law of Treaties would appear to suggest such a notification may be withdrawn.

This opens a path to serious political and legal challenges seeking to push the Government to withdraw notification if negotiations appear to be leading to a negative outcome for the UK. In this instance, how closely the Government has stuck to the negotiating mandate given by Parliament becomes more important. Yesterday’s verdict may therefore be merely a precursor to a far more consequential legal decision on whether Article 50 can be withdrawn.

Ben Zwolinski
News Assistant

As News Assistant, Ben keeps DeHavilland's Newsdesk functions running smoothly from day to day. A graduate of the University of Sheffield, Ben has experience working for the Council of the EU, and completed a traineeship with Scotland Europa and the City of London Corporation office in Brussels.