UK Supreme Court To Hear Arguments On Invoking Article 50

Yesterday, Britain’s Supreme Court began a four day hearing on the question of whether Parliament is required to vote before the government an invoke Article 50 and officially begin the negotiations the exit the European Union. The specific legal question involves the fact that the original law passed by Parliament that brought Britain into the EU conferred certain rights on British citizens and that the invocation of Article 50 would revoke those rights, thus Parliamentary approval was needed. Last month, the High Court ruled that a vote by Parliament was needed which prompted this appeal to the Supreme Court.

In addition, the Court will also be looking at whether the invocation of Article 50 will effect the current constitutional arrangements that Britain has with Scotland, Wales, and Northern Ireland. If the Court were to rule those arrangements are effected, it could possibly mean that the governments in each of those areas would also need to approve the invocation of Article 50. Considering that Scotland and Northern Ireland both solidly voted to remain in the EU, the chances for their approval seem slim. That would only infuriate the majority who voted to leave as the will of the majority would be effectively thwarted.

Another, less likely possibility, that the Times’ article raises is that the Court could ask whether Article 50 is legally reversible. Since Article 50 is European law, the ultimate arbiter of that question would ironically be the European Court of Justice, meaning that a European court could actually be deciding on how Britain could exit the EU. Again, that would certainly infuriate those who voted to leave specifically to get out from under rulings from Europe.

A decision from the Supreme Court will probably come shortly after the start of the New Year. Requiring Parliament to vote would force Theresa May’s government to provide some clarity on what its negotiating strategy with the EU would be. Unfortunately, that would also provide that same clarity to the Europeans, weakening Britain’s negotiating position. A possible compromise position would be for Parliament to pass legislation that would allow Article 50 to be invoked but with a requirement that Parliament also be able to vote on whether to accept the final negotiated agreement with the EU. That vote would essentially be “Brexit II” which would also probably again infuriate those who voted to leave.

All this just shows what a poor decision David Cameron made in holding this ill-considered referendum in the first place. And it is clear that neither the government who supported remaining in the EU nor those who wished to leave were in any way prepared for the actual possibility that the country would vote to exit the EU and have still not come up with a real plan to move forward.