Brexit: UK High Court Intervenes

Nobody is saying the referendum shouldn’t have happened, nor does this current judgment deny the result, it merely questions the apparatus by which the decision is now put into effect. The process should have the continuous involvement of recourse to Parliament, and could therefore drag on even longer, opening the door for economic instability both in the UK and in Europe in the interim. With a second Eurozone crisis looming, nobody wants Brexit to take decades.

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By By Alexandra Phillips l November 3, 2016

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British Prime Minister Theresa May

LONDON-News rippled through the UK airwaves today about a High Court defeat of the UK Government over triggering Article 50 to start the formal negotiations of the UK leaving the EU. But before Brexiteers start lamenting a lost cause, or Bremoaners laud a rather cheaply won victory, let’s pause to consider what this actually means.

The ruling simply suggests that the Government does not have the absolute power to lodge such a significant political change without consulting Parliament first. This therefore opens the door to MPs that opposed Brexit to vote down invoking Article 50, or hamper the process of achieving ‘full’ Brexit.

First of all, Prime Minister Theresa May’s government has appealed to the Supreme Court. It seems logical that a referendum would surely circumvent the need to consult the MPs elected to represent the people on its legitimacy when the people themselves have voted directly. Of course, that is the case and in no way is the result of the referendum being contested. The appeal will happen next month, and due to the complexities of the UK not having a written constitution and it being a rather unprecedented political decision, it is not beyond all bounds of belief that the appeal may be upheld. It would certainly make the process of leaving the EU swifter and neater.

But it is also well within the bounds of possibility that the Government won’t succeed. Although one thing can be argued: because the process of leaving the EU involves negotiations with a third party, the EU itself and its composite member states, constant recourse to UK Parliament every step of the way would create a difficult precedent for the EU regarding its extant members during negotiations, and quite simply, the Government can hardly be held to a specific mandate for leaving when it cannot be known what the negotiations will include regarding the demands from Brussels.

Secondly, if the appeal is rejected and MPs are indeed consulted, a brief glance at the political map would reveal a lack of appetite to unleash the UKIP genie from the electoral bottle once again. While we are still some time away from a significant national election, the overall schism in the Labour Party, most likely to shed votes to UKIP in its heartlands who, against popular belief, were actually the keenest leave voters, and the fragility of staunchly Europhile Conservatives under a significantly Eurosceptic cabinet, may deter many for personal reasons from wanting to stoke up trouble. Nigel Farage would be on the first flight back from America (apparently at the Spectator Awards in London last night, the UKIP Leader and most prominent Brexit campaigner revealed he has a job in the White House, if Trump wins the U.S. presidency. Whether this is tongue-in-cheek has yet to be seen). With boundary changes thrown into the mix too, British MPs opposing Brexit could well find themselves out of a job. And, if there’s one thing MPs like less than Brexit, is their own unemployment. Even the majority of MPs who backed the legal challenge say they do not intend for the decision of Brexit to be ignored. Despite there being a majority of MPs for Remain, it’s worth noting that 421 out of 574 English and Welsh constituencies voted to Leave.

However, that would enable pesky Lords, the unelected second house, to overturn Parliament even if the Commons did back the Government. That may well re-open the entire debate about making the second house directly elected, or scrapping it altogether. For the older Peer, that is not a concern, but with the House increasingly occupied by young former apparatchiks of past prime Ministers, the ones more likely perhaps to wish to rumble Brexit, it poses yet another concern to be considered.

Similarly, Theresa May continues to show grit and conviction when it comes to seeing Brexit through. The last thing she would want would be to go down in history as the Prime Minister who pleased nobody; who inherited Brexit, pushed for its completion upsetting one half of the electorate and then failed, upsetting the other half, and leaving a bewildered and divided public. That narrative is not at the top of anybody’s list.

The referendum to join the European Economic Community in 1975, that essentially brought the UK into the EU, was won with 67% in favour based on a national turnout of 64%. The result was not legally binding due to the concept of ‘Parliamentary Sovereignty’ but was expressed in law with ease due to the definitive decision expressed by the majority of the public.

The issue had not been contested again until this year, with the argument that again, it should be presented to Parliament, but with the fear that due to the more divisive nature of the referendum and closer result (only a 52% majority) both MPs and Peers who wish to oppose Brexit could garner safety in numbers and vote it down.

It would certainly be unprecedented and lead to significant backlash if the Government were seen to effectively ignore the will of the people after a six-to-one vote in the Commons to give the decision to the British people. I do not think for one moment that many politicians have an appetite for such flagrant disregard for democracy. But the worry is it does open the door for concessions, for compromises, for tinkering and essentially for not delivering ‘full’ Brexit, which in many respects would be not leaving the EU at all. The matter would not be settled ‘once and for all’ as was the wish of Cameron, but blight both the Conservatives, who have long had to manage its effects in dividing its elected officials, and the Labour Party, who are coming to learn that Brexit is what divides their elected officials from their core voters.

But in reality, this High Court judgment essentially says that Parliament must be involved in the process of leaving the EU, which is hardly a big surprise. While it does essentially dig up the possibility of having to laboriously have the whole debate again if Parliament does have to give assent, and then refuses to it is not abnormal to assume a major political decision would have at least a few rounds among the elected representatives of that country and this could just be a tiny blip, blown up by a voracious media. Certainly the appetite for column inches on the subject adds to the case that re-opening the can of worms is not a good idea at all.

Nobody is saying the referendum shouldn’t have happened, nor does this current judgment deny the result, it merely questions the apparatus by which the decision is now put into effect. If it is determined that the process should warrant continuous recourse to Parliament, it could therefore drag on even longer, opening the door for economic instability both in the UK and in Europe as negotiations stutter and stumble in the interim. With a second Eurozone crisis looming, nobody wants Brexit to take decades.

On a careful balance of probabilities, I still think the likely outcome lies in favour of the government pursuing Brexit as neatly and swiftly as possible. But I, as well as the majority of political commentators, have been very wrong before.


Alexandra Phillips is former Head of Media for UKIP, the political party in Britain that campaigned to leave the EU and was aide to its charismatic leader Nigel Farage. She left UKIP after the referendum victory and joined the Conservative Party in order to ensure other big political ambitions are met in the U.K. She lives and works in London as a political advisor and communications consultant. Ms. Phillips is also a contributor to SFPPR News & Analysis, of the conservative-online-journalism center at the Washington-based Selous Foundation for Public Policy Research.

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