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Brexit ruling moves focus to Supreme Court as Government plans to appeal

Published 03/11/2016

The High Court is set to make a ruling
The High Court is set to make a ruling

The future of Brexit now appears to rest with the Supreme Court after High Court judges dealt what could be a fatal, historic blow to Government plans to use the royal prerogative to start the process of exiting the European Union without the authorisation of Parliament.

Three judges unanimously ruled Prime Minister Theresa May does not have the power to bypass MPs by relying on the prerogative to trigger Article 50 of the Treaty on European Union and begin the two-year period of divorce negotiations with the 27 other countries in the EU bloc.

The Lord Chief Justice, Lord Thomas, said to do so would be contrary to "the fundamental constitutional principles of the sovereignty of Parliament".

The court rejected the Government argument that prerogative powers were a legitimate way to give effect "to the will of the people" who voted by a clear majority to leave the European Union in the June referendum.

Lord Thomas - sitting with the Master of the Rolls, Sir Terence Etherton, and Lord Justice Sales - emphasised to a packed court in London they were deciding "a pure question of law" and not expressing any view about the "political issue" concerning the merits of leaving the European Union.

The pound rose sharply after the judgment, but the Government swiftly announced it is to appeal to the highest court in the land.

It is widely expected that 11 Supreme Court justices will sit before Christmas to hear one of the most important constitutional cases in generations.

Anti-prerogative campaigners were celebrating the High Court victory in London while the Government expressed its "disappointment".

Nigel Farage, who led Ukip's successful fight for Brexit, said he feared that "a betrayal may now be near at hand".

Unless overturned by the Supreme Court - or at a potential further appeal to the European Court of Justice in Luxembourg - the High Court ruling threatens to plunge the Government's plans for Brexit into disarray and delay.

Brexit Secretary David Davis, who defended the Government's case in court, said ministers would be forced to produce a full Act of Parliament in order to trigger Article 50 unless the High Court ruling is overturned.

MPs have suggested that Mrs May could call a snap general election next year to ensure she has enough supportive MPs to get her Brexit plan through the House of Commons.

Mrs May's spokeswoman said it was still the Government's plan to invoke Article 50 by the end of March.

The Prime Minister will, at her request, discuss the Brexit process with European Commission president Jean-Claude Juncker on Friday, Mr Juncker's spokesman told reporters in Brussels.

The spokesman said all the other members of the EU would like to see a "swift" notification of Article 50 to begin the Brexit process.

International Development Secretary Liam Fox, a leading Brexiteer, told the House of Commons of the proposed appeal and said the Government remained "determined to respect the result of the referendum".

Labour leader Jeremy Corbyn said the High Court ruling underlined the need for the Government to bring its negotiating terms for Brexit to Parliament "without delay".

He said: "Labour respects the decision of the British people to leave the European Union. But there must be transparency and accountability to Parliament on the terms of Brexit."

Liberal Democrat leader Tim Farron said the Government must now lay out its negotiating position in Parliament, while Scottish First Minister Nicola Sturgeon described the finding as "significant indeed".

Green co-leader Caroline Lucas hailed it as "brilliant news", adding: "That's what taking back control should be about - better democracy."

Mr Farage said he feared betrayal and had "a distinct feeling" that the political classes "do not accept the June 23 referendum result".

He said: "I now fear that every attempt will be made to block or delay the triggering of Article 50," and he warned: "If this is so, they have no idea of the level of public anger they will provoke."

Mrs May announced at the Conservative Party conference that she intends giving an Article 50 notification by the end of March 2017.

Her opponents in court were "concerned citizens" drawn from all walks of life, with the lead challenge brought by investment fund manager and philanthropist Gina Miller.

Outside the Royal Courts of Justice, Ms Miller was greeted by rounds of applause.

Ms Miller said the result was "about our United Kingdom and all our futures.

"It's not about how anyone voted. Every one of us voted for the best country and the best future."

The second named claimant was Deir Dos Santos, a hairdresser and British citizen described as "just an ordinary guy".

His solicitor David Greene, senior partner of law firm Edwin Coe, said in a statement on his behalf: "This is a victory for democracy over the feudal institution of royal prerogative.

"The Government has to accept the constitutional reality that Parliament must have early involvement in the process."

But Mrs May's spokeswoman said: "Our plans remain to invoke Article 50 by the end of March."

The spokeswoman declined to discuss whether ministers believe the March deadline is achievable if they have to appeal further to the European courts or, if the legal battle is finally lost, are forced to seek Parliament's approval.

She said MPs would be "involved" in discussions about the way forward and would have opportunities to debate Brexit - including on Monday, when the Commons will discuss the impact of withdrawal on workers' rights.

But she made clear that Mrs May does not intend to spell out her negotiating stance, as opponents have demanded.

"What matters moving forward is doing what is in Britain's national interest and that doesn't mean setting out all your cards on the table as you go into a negotiation with 27 other countries," said the spokeswoman.

However C onservative former ministers Nicky Morgan and Anna Soubry have urged Mrs May to bring forward full-blown legislation to give MPs extensive scrutiny of Brexit before triggering Article 50.

They called on current ministers to table a Bill in Parliament following the High Court decision.

Brexiteers are now calling for reform of the way judges are appointed.

Ukip leadership candidate Suzanne Evans condemned "activist judges" and suggested a mechanism should be created to allow them to be dismissed.

Downing Street later said that its expectation was that there would be no possibility of appealing to the European courts against the Supreme Court's eventual decision, as the issue at stake was a question of UK constitutional law and not a disputed point of EU law.

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