Brexit requires parliamentary approval in setback for Theresa May

Brexit to require parliamentary approval in setback for Theresa May

Government to appeal to supreme court against judgment that MPs rather than government must trigger article 50


Parliament alone has the power to trigger Brexit by notifying Brussels of the UK’s intention to leave the European Union, the high court has ruled.

The judgment (pdf), delivered by the lord chief justice, Lord Thomas of Cwmgiedd, is likely to slow the pace of Britain’s departure from the EU and is a huge setback for Theresa May, who had insisted the government alone would decide when to trigger the process.


The challengers maintained that parliamentary approval and legislation was required for such a fundamental change. Photograph: Daniel Leal-Olivas/PA

The lord chief justice said that “the most fundamental rule of the UK constitution is that parliament is sovereign”.

A government spokesman said that ministers would appeal to the supreme court against the decision. The hearing will take place on 7-8 December.

The lord chief justice said: “The court does not accept the argument put forward by the government. There is nothing in the 1972 European Communities Act to support it. In the judgment of the court the argument is contrary both to the language used by parliament in the 1972 act, and to the fundamental principles of the sovereignty of parliament and the absence of any entitlement on the part of the crown to change domestic law by the exercise of its prerogative powers.”

Unless overturned on appeal at the supreme court, the ruling threatens to plunge the government’s plans for Brexit into disarray as the process will have to be subject to full parliamentary control.

Government lawyers had argued 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.

But the lord chief justice declared: “The government does not have power under the crown’s prerogative to give notice pursuant to article 50 for the UK to withdraw from the European Union.”

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insertzLiam Fox: government ‘disappointed’ with article 50 ruling

The international trade secretary, Liam Fox, said the government was disappointed by the high court decision but added that “the government is determined to respect the result of the referendum”.

Ukip’s leader, Nigel Farage, said he was angered at the decision. “I worry that a betrayal may be near at hand … I now fear that every attempt will be made to block or delay the triggering of article 50. If this is so, they have no idea of the level of public anger they will provoke.”

But Nicky Morgan, the former education secretary, said she believed colleagues on all sides of the Commons would vote in favour of triggering Article 50 but said “democracy has been asserted.”

“I am also very confident in colleagues in parliament, we are very aware of how people voted, 17 million of them, to leave the EU, and I expect parliament will approve triggering of the Article 50 process,” she said. “It’s a question of law.”

She added: “We have a very important concept of the rule of law, the judges were very clear it was purely on a question of law. They are saying this is a fundamental constitutional issue and the government doesn’t have the power to trigger this process.”

Labour leader, Jeremy Corbyn, said: “This ruling underlines the need for the government to bring its negotiating terms to parliament without delay. 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.”

The Lib Dem leader, Tim Farron, said he was delighted by the ruling. “Given the strict two-year timetable of exiting the EU once article 50 is triggered, it is critical that the government now lay out their negotiating to parliament, before such a vote is held,” he said.

By handing responsibility for initiating Brexit over to MPs, the three senior judges – Lord Thomas; the master of the rolls, Sir Terence Etherton, and Lord Justice Sales – have ventured on to constitutionally untested ground.


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About the authors

Owen Bowcott is legal affairs correspondent. He was formerly the Guardian’s Ireland correspondent and also worked on the foreign newsdesk

Jessica Elgot is a political reporter for the Guardian. She was previously the Huffington Post UK’s assistant news editor. She tweets from @jessicaelgot

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