The court ruling that Britain’s parliament must have a vote before the government can trigger Article 50 to start Brexit negotiations has opened more than one can of worms. One particularly interesting question is what exactly the House of Commons and House of Lords will be voting on now that they are to have their say.
In its ruling, the court made it very clear that parliamentary authorisation is required – but it did not determine what the form of authorisation would be. But the Brexit minister, David Davis, has conceded that, if the Supreme Court upholds the decision at appeal, an act of parliament will be sought.
The big question is how much detail parliament will demand on any potential exit deal and the government’s negotiating position in return for its consent. Of course, that will be a matter of political decision making, contestation, conflict and compromise.
Points of clarity
It is reasonable to expect that in order to authorise Article 50 being triggered, MPs and peers might want at least a preliminary decision on some of the big, knotty questions that Brexit raises. For instance, they might demand a clearer indication of the government’s plans pertaining to Northern Ireland and its border with Ireland, what happens to EU citizens living in the UK after Brexit and what happens to Scotland, which voted to remain in the EU. They might especially want some clarity on what the government’s likely red lines are to remain in the single market, and who will take on the many and complex regulatory tasks currently carried out by EU agencies.
Of course, the more detailed the proposition put to parliament the more time will be spent debating it – which will delay the triggering of Article 50. I cannot foresee a situation in which, realistically speaking, this task will be completed in much less than 12 months – although the prime minister appears to still be confident that Article 50 can be triggered in March.
The high court decision should also lead to some positions in Brussels being softened. In particular, the fairly rigid proposition that there will be no firm negotiation or concrete discussions until Article 50 has been triggered should, for reasons of practicality and pragmatism, be relaxed by those who hold it within the EU itself.
That said, whatever parliament authorises will have to be somewhat speculative. The final shape and detail of any Brexit deal will be the subject of extensive negotiation, so British MPs could only be voting on a proposed deal.
The complexity does not end there. Depending on its content, there is a remote possibility that the proposed deal, or parts of it, might require the unanimous consent of Europe’s other member states. In some cases (and very much depending on the content of the deal) it may even require national referendums in some member states. In other words, there is a real possibility that the UK might exit without a “deal” in place for its future relationship with the EU.
Once Article 50 is triggered withdrawal will happen in two years – with or without a deal. The only way to avoid that would be to revoke the Article 50 notice – but it remains unclear whether that is legally possible and, certainly, it seems unlikely to be politically acceptable in the UK.
In this way, the court decision has revealed the complexity of leaving the EU. Does this mean there will be another referendum? I don’t think so. The likelihood is that parliament will respect the vote to leave the EU, and that anything that might call that into question will be approached with caution.
This is why, in spite of the turmoil that this decision has created (and which may increase if the government’s appeal to the Supreme Court does not succeed) I cannot foresee an election being called in spring 2017. An election at that point would be perceived as a proxy second referendum – and there seems to be little, if any, government desire for such a course.
However, there might be a case for an election after the parliamentary vote, once Article 50 has been triggered. That would give the new government a strong mandate in terms of negotiating the exit and any possible Brexit deal. The downside, of course, would be the lack of continuity in government through this complex negotiation.
So all eyes now turn to the Supreme Court on December 7 and 8 and, subsequently, to parliament. The Brexit story has barely begun.
This article was first published in The Conversation
Professor de Londras and other leading constitutional and European law experts at Birmingham Law School will hold a 1-hour Q&A session on November 8th discussing what the High Court’s decision on Article 50 means for the process of Brexit. This is a public event; no registration or tickets are required. Attendance is free.