U.K. Court to Decide How Soon Brexit Can Actually Mean Brexitby
Government seeks to initiate exit from EU without vote
Loss for Theresa May could delay Brexit by more than a year
Brexit means Brexit, Theresa May says, but a London court this week will decide whether it’s up to her to decide when the U.K. leaves the European Union.
The prime minister’s most senior legal adviser, Attorney General Jeremy Wright, will attempt to convince a judge that May can trigger Article 50 of the Lisbon Treaty, which starts an exit, without approval from her fellow lawmakers. Failure would force the issue into the House of Commons and the House of Lords, both of which were largely pro-EU. The lawsuit, which has hearings scheduled for Oct. 13 and 17, could delay the exit for a year, or lead to its derailment altogether.
An act of Parliament would mean “a first reading, second reading and it could be snarled up” by the process in the Lords, which can take a year or even longer, said Rob Ford, professor of political science at Manchester University. "Remember, the government does not have anything near a majority in the House of Lords, so it would be perfectly possible for Labour or Liberal Democrat peers, who are overwhelmingly in favor of remaining, to block any Article 50 triggering."
The pound is this year’s worst performer among 32 major currencies tracked by Bloomberg, plunging 17 percent since Britain’s shock June 23 vote to leave the EU. May took over when David Cameron resigned, and investors are concerned that she is prioritizing immigration controls over safeguards for trade and banking.
Thursday’s case boils down to timing. Undeterred by market turmoil and looming legal challenges, May said earlier this month that she plans to begin the two-year countdown to Brexit by March 2017. That comes prior to the drawing up of an act of Parliament called the Great Repeal Bill, intended to end the EU’s legal supremacy in the U.K. and restore sovereignty to Parliament.
The new bill will preserve the status quo until Parliament can debate any changes. Lawyers opposing the government will argue Thursday that Parliament must be involved before the triggering of Article 50 starts to propel the country out of the EU.
By introducing the Great Repeal Bill after triggering Article 50, the Conservative prime minister sidesteps any risk that the government could lose control and politicians opposed to Brexit can slow the process, according to Ford.
"Politically, everyone keeps forgetting how weak the Conservatives’ position actually is," he said. "They have a very small majority in the House of Commons, no majority in the Lords, so the way you deal with that is to try to involve Parliament as little as possible."
The case will be taken "very seriously" and may reach the Supreme Court by December, Judge Brian Leveson said during a July 19 hearing.
“The court takes this litigation very seriously and will move expeditiously,” Leveson said. The case is "of such constitutional importance it is difficult to see why" it won’t move quickly to the Supreme Court.
Lead claimant Gina Miller, who runs an investment start-up, says she wants an “honest, grown-up’’ debate in Parliament about the impact of Brexit on science, education and security. Other claimants include a hairdresser, Deir Dos Santos.
Standing between May and her desire to trigger Article 50 is a three-century-old statute enacted after the overthrow of King James II. The rule, enshrined in the Bill of Rights of 1689, says that laws should not be discarded or suspended without consent from Parliament.
Our argument "dates back to the 1688 Glorious Revolution, which forms the foundation of the doctrine of parliamentary sovereignty," said Dominic Chambers, a lawyer advising Dos Santos. "Any decision to trigger Article 50 would overturn a whole host of legislation that is enforceable in the U.K. and that cannot be done without the consent of Parliament."
A September report by the influential House of Lords Constitution Committee appeared to reinforce this position when it said it would be "constitutionally inappropriate" and would set "a disturbing precedent" for the government to act on the referendum without parliamentary approval.
Still, economists at Morgan Stanley this week cut their estimated probability of Britain remaining in the EU to 10 percent from 15 percent, citing opposition Labour Party leader Jeremy Corbyn’s unwillingness to "stand in the way" of Brexit.
The government was forced to release its arguments against a vote after a judge said the court documents were covered by the principles of "open justice." Lawyers for the government had sought to keep their arguments confidential until the hearing, but The People’s Challenge, a public-interest group that wants to join the lawsuit, contested the move.
It would be "constitutionally impermissible" to allow lawmakers to vote on whether to trigger the U.K.’s exit, the government said in the documents. There was also a pledge to honor the referendum result in the 2015 Conservative manifesto.
Judge Ross Cranston said in his ruling that there were no grounds to keep the documents private.
A spokeswoman for the Department for Exiting the European Union declined to comment beyond reiterating a Sept. 28 statement made by Attorney General Wright.
"There must be no attempts to remain inside the EU, no attempts to re-join it through the back door, and no second referendum," Wright said. "The result should be respected and the government intends to do just that.”
May’s spokesman said that it’s "absolutely necessary" for members of Parliament to scrutinize the process, but they will not be given a vote.
“The mandate for Britain to leave the EU is clear, overwhelming and unarguable," Brexit Secretary David Davis told Parliament Monday. "No one should seek to find ways to thwart the will of the people.”