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ARTICLE 50 TEU JUDGMENT – WHAT DOES IT MEAN?

2016-11-07

The result of the United Kingdom’s EU Membership referendum was a watershed moment. The “ever closer Union” of the people of Europe, of trade, of free movement – the very momentum of history even, had come to a shuddering halt.

The tragedy of detachment for many was matched with the enticing vision of a free, independent and sovereign United Kingdom finally liberated from 40 years of European integration. Whatever the vision, “Brexit means Brexit” was the line, “take back control” was the mantra and yes, Britain would leave the European Union. Or, would it?

In order to leave the European Union, a member state must notify the European Council of the intention to withdraw, the so-called Article 50 TEU procedure. The procedure would start the two-year process by which the United Kingdom would negotiate an exit.  The Prime Minister of the United Kingdom, Theresa May, had informed fellow European leaders it was her intention to trigger this procedure no later than the end of March 2017. However, the prospect of this timetable has been put in doubt by the recent decision of the High Court of England and Wales in R (Miller) v Secretary of State for Exiting the European Union.

The case concerned whether the Government using the so-called “Crown Prerogative” has the power to begin this process – one which would inevitably result in the termination of EU Law rights, rights which Parliament had conferred upon the people by virtue of European Communities Act 1972. In the landmark judgment the High Court said no – Parliament must have a vote on triggering the Article 50. Aside from the tabloid outrage at this subversion of the democratic will (“judges versus the people” according to Daily Telegraph 04/11/2016), the case has two significant consequences.

Firstly, the process by which the government can effect a “Brexit” may very well be delayed. While the Government intends to appeal the ruling of the High Court, it is obvious that Theresa May’s timetable of triggering Article 50 TEU by the end of March 2017 is now flimsy at best. What is revealing about the judgment is that it confirms that if Parliament confers rights, only Parliament can take them away. Many legal commentators believe that it will therefore be necessary for an Act of Parliament to be agreed. This will have to pass through by the House of Commons and the House of Lords. This is not only cumbersome but with Remain MPs and Lords determined to avoid a “hard Brexit”, the process could be stalled indefinitely. This however is unlikely. That said, this ruling reinforces Parliament’s supreme voice in this crucial issue.

Secondly, the case threatens to expose the Government’s approach to handling the exit negotiations upon triggering Article 50 TEU. It is highly likely that Parliament, of which the majority supported remaining in the European Union, will demand concessions in order to move forward. The ongoing polemic in the media of the nature of Britain’s future in Europe characterised by “hard” or “soft” Brexit is heart and centre of this conundrum. It is widely held that Parliament, if not the people, favour remaining in the Single Market with the contingent freedom of movement which so dominated the “Leave” campaign. How the Government broaches this conflict between the “people vs Parliament” will be a defining factor in the months ahead and while not yet a constitutional crisis, it appears “Brexit” is living up to its reputation as a watershed moment in British political life.

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Related People: Nikolaj Juhl Hansen, Tina Ravn, Francis Oxley

Related Service Areas:  Banking and Finance, Commercial, Corporate and M&A, Employment, EU and Competition, Intellectual Property, Tax

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