Is Brexit Unconstitutional? High Court ruling means MPs will vote on whether to leave the EU.

Posted on: 04 Nov 2016

Category: Articles

On June 23rd 2016, members of the British public voted in favour of Britain leaving the European Union and this unexpected and controversial result has led to months of political upheaval marked by the resignation of Prime Minister David Cameron, the resignation of over fifty parliamentary members, and cries of foul play and dishonest campaigning techniques on both sides.

Theresa May, the UK’s new Prime Minister had assured both parliament and the public that she would trigger Article 50 of the Lisbon Treaty by March 2017 and therefore begin the formal exit negotiations with the EU, but a landmark ruling by the High Court has thrown the country into a “constitutional crisis” by deciding that only Parliament has the authority to trigger such a process.

The case was brought before the courts by financial entrepreneur Gina Miller, on behalf of “hundreds” of unnamed businesses, and the British people. Ms Miller, represented by leading London based law firm Mischon de Reya, argued that the result of a referendum is merely advisory rather than binding and that for the UK to leave the EU, a law would have to be passed authorising such a withdrawal. This would necessitate a specific act of parliament. The UK government, clearly opposing Ms Miller’s position, grounded its defence on the argument that the government decision to go to the people for a decision to exit the EU or not, gave the government a mandate to implement the public’s democratic choice. On the 3rd November 2016, Ms Miller’s argument won the day but the Government said that it will seek to appeal the judgment before the Supreme Court in the coming months, a result which will be final and binding.

The issue of whether Brexit is unconstitutional or not is a complex one. The United Kingdom does not have a written constitution and instead relies upon a complex tradition of principles, practices and precedents that have been accrued over many hundreds of years. This leaves the Court in a position where it will need to decide whether, if the UK did have a written constitution, would it consider a referendum in the same manner as a legislative vote and should a referendum be considered as good as one in a situation such as this.

The controversy hinges on the fact that nowhere in the European Referendum Act 2015, does it state that the result of a referendum is legally binding or anything other than advisory in nature. The defendant argued that regardless of this fact, the referendum was called on the basis that the government would fully respect the wish of the people and the outcome of the vote and as such, it should continue with triggering Article 50 and leaving the European Union.  Mischon de Reya provided two very solid and legally sound arguments, namely that there is nothing in the 1972 European Communities Act to support the government’s point of view and that the crown has no entitlement to change domestic law by the exercise of its prerogative powers.

If MP’s are called to vote on the matter, it opens a minefield of conflicts between loyalty to their constituents and their own personal opinions. It is expected that a majority of MPs would vote in favour of invoking Article 50 despite having backed the Remain campaign, due to the fact that Brexit was confirmed by the referendum result.

Whichever way the appeal goes, it is expected to throw the UK into further social and economic turmoil adding to months of political instability and market fluctuations –although, following Thursday’s ruling, the pound surged to a four-week high against the dollar and the euro and was a welcome boost after weeks of turbulent trading.

Having collaborated with the plaintiff’s firm in the past, FFFL partner Christian Farrugia said “today’s High Court decision is an outstanding professional accomplishment for Mischon de Reya and for Ms Miller. Whilst one must be careful to respect the wishes of the British public as expressed in a democratic process such as a referendum, I am encouraged by the High Court’s unequivocal decision that the rule of law must be applied correctly and followed to the letter at all times. Following months of uncertainty, we hope that a conclusion will be soon reached, naturally after the appeal court’s decision and very probably now with the UK Parliament’s intervention, to put the future of both the EU and the UK on a sound path. This is clearly also important for Malta due to its strong historic, cultural and commercial links with UK.”