High Court Throws a Spanner in the Brexit Works


A high court judge has ruled that Brexit cannot go forward without a vote of Parliament. In a nutshell, the court ruled that since Parliament passed the 1972 law joining the EU, only Parliament can make the decision to leave the EU:

The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses….The Government of the day cannot by exercise of prerogative powers override legislation enacted by Parliament.

….In the present case, however, the Government accepts, and indeed positively contends, that if notice is given under Article 50 it will inevitably have the effect of changing domestic law…The Court does not accept the argument put forward by the Government. There is nothing in the text of the 1972 Act to support it.

Prime Minister Teresa May said this ruling would be appealed to the Supreme Court, which will hear the case in early December. If the Supreme Court upholds the decision—which seems likely—it could lead to further court cases that end up giving the Scottish Parliament a veto over withdrawal. That would kill Brexit completely.

But even if only a vote of Parliament in London is needed, it’s not clear what will happen. The New York Times passes along the conventional wisdom that the court decision may delay things but not derail them: “Few observers believe that Parliament would go so far as to block a departure from the bloc, as lawmakers themselves voted overwhelmingly to hold the referendum and pledged to abide by the results.”

I guess. Maybe. But once Parliament plunges into this, and the government is forced to unveil its negotiating stance, I could see public opinion changing fairly dramatically. I also can’t help but think that there are a lot of MPs who say they’re for Brexit but would welcome an excuse to kill it. Remember: the referendum passed by only 52-48 percent. It wasn’t exactly a landslide.

If I had to lay a bet, I’d guess that one way or another, Brexit will somehow not happen. Stay tuned.