Opinion
04.11.16

Does Brexit really mean Brexit after all?

For those hoping to reverse the Brexit decision, the High Court throws them an electoral lifeline, says Mark Dawson.

The English High Court’s landmark decision yesterday on Article 50 – the Lisbon Treaty rules for exiting the European Union – has thrown a spanner in the works of Brexit. The Prime Minister’s original plan was secrecy: say nothing about her own personal position on Brexit, trigger Article 50 through the use of the royal prerogative (a power that allows the UK government to act alone), hope for a half-good deal with her EU partners, and declare victory. This strategy was designed to deliver an EU exit with honour (some single market access along with sovereignty on free movement and others issues).

Today that plan is in tatters. It should be no surprise – a key argument of Brexiteers was that they wanted to restore the sovereignty of the UK Parliament. By demanding that Article 50 could be triggered only by a parliamentary vote, the High Court has done exactly that: put Parliament in charge of the time-tabling of Brexit. This, however, is a Parliament whose majority wanted a remain outcome on 23 June. It is also a Parliament with a long tradition of closely scrutinizing government motions and asking awkward questions to the ministers who propose them. The lid of silence on the UK government’s Brexit negotiation strategy has thus been blown open by this decision. The empty slogan of ‘Brexit means Brexit’ is unlikely to survive months of parliamentary debate.

The government now has some key decisions to make. Firstly, how do they interpret the ruling? One issue is whether the ruling requires Parliament merely to vote on Brexit (i.e. to pass a motion triggering Art. 50) or to pass a full Act of Parliament (i.e. a piece of legislation outlining an exit process). Most UK lawyers think the latter will now be required. This interpretation, however, will destroy the government’s time-table, making it impossible to start the process to leave the EU in spring (as originally planned). An Act will require the agreement of Parliament’s second chamber, the House of Lords, where the government does not have a majority. This body can delay the passage of an Act for up to two years. Such a delay would have drastic implications – for one thing, it would make an EU exit prior to the UK’s anticipated 2020 general election unlikely. For those hoping for the ultimate reversal on Europe – cancelling Brexit altogether – the High Court’s decision has thrown them an electoral lifeline.

Secondly, and just as importantly, the government must now decide how it wants to communicate Brexit both to the public and across Europe. So far, this strategy has consisted mainly of cryptic silence coupled with a promise to implement the people’s will. The main debates have taken place beneath the surface i.e. in a Cabinet split between a ‘hard’ Brexit group (led by the International Trade Secretary, Liam Fox) and a group (led by Philip Hammond, the Chancellor) that wants to remain in the European Single Market. This decision is likely to move these debates to the surface of UK politics. A UK government that has often been forced to downplay the impact of leaving the EU will have to be more open (and more realistic) with the public about what its planned negotiation with the EU can achieve. At the same time, German and other European governments will finally get to know more about what the UK really wants.

For those in favour of Brexit, today was a difficult day – Britain will most likely still leave the EU but only after a prolonged political battle. Today’s big winner was democracy and transparency. Finally, the UK’s Prime Minister will have to tell us what Brexit really means.

More about the author

  • Mark Dawson , Professor of European Law and Governance