Theresa May’s plans to keep tight control of the Brexit negotiations have been upended by a high court ruling that Parliament must be more involved in the process.
Theresa May’s plans to keep tight control of the Brexit negotiations have been upended by a high court ruling that Parliament must be more involved in the process.
Specifically, the Prime Minister has been told that the government does not have the authority on its own to invoke Article 50 of the Lisbon Treaty, the article of EU law which triggers the process of Britain’s withdrawal, and that Parliament alone can do so. The government is appealing to the Supreme Court to have the ruling overturned, but if it fails, MPs and peers could end up having a big say on the terms on which Britain seeks to leave. In the eyes of some, that could amount to a dilution of the referendum result to the point at which Brexit no longer means Brexit.
Critics of the ruling see it as a case of unelected judges seeking to thwart the will of the people expressed in the referendum. The Daily Mail’s headline the morning after the ruling called them the “enemy of the people”. Defenders of the judges say they are only doing their job: to uphold the rule of law and to defend the sovereignty of Parliament, something which Brexiteers claimed was at the centre of their campaign for Britain to leave the EU. The dispute has the makings of a constitutional crisis and may lead to a snap general election. Are the judges right in their ruling? And how should MPs use the powers the courts say it is their right to exercise?
From the moment she became prime minister, Theresa May has insisted that ‘Brexit means Brexit’. But beyond that she has given little away about what sort of Brexit she wants to negotiate, whether she wants a ‘hard’ Brexit, in which Britain severs virtually all ties with the EU, or a ‘soft version’, in which, for example, the country remains part of the EU’s single market and its customs union. What she has insisted on is that the government should take the key decisions on this, rather than Parliament, and that it has the right to do so under crown prerogative.
But this view of the law was challenged in court by a case brought by Gina Miller, a wealthy fund manager and supporter of Britain remaining in the EU. She assembled a group of eminent lawyers to argue that it was Parliament’s job. She was accused by the government’s lawyer, the Attorney General, Jeremy Wright, of mounting a ‘backdoor’ attempt to overturn the result of the referendum. But three of the most senior judges in the country, Lord Thomas, the Lord Chief Justice, Sir Terence Etherton, the Master of the Rolls, and Lord Justice Sales ruled in her favour.
Invoking the centuries-old principle that ‘the king [in this case, the government] hath no prerogative, but that which the law of the land allows him’, they accepted the case that, since it was parliament that had passed the law which took Britain into what became the EU, only parliament could initiate the process by which that law is revoked. They said: ‘Parliament having taken the major step of switching on the direct effect of EU law in the national legal system by passing the European Communities Act1972 as primary legislation, it is not plausible to suppose that it intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again.’
The government is appealing against the ruling to the Supreme Court which is expected to make its final judgement in January. But few observers forecast a different result.
Many Brexiteers have responded with outrage to the ruling. Nigel Farage, the acting leader of UKIP, said: ‘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.’ Dominic Raab, a former justice minister, said: ‘On June 23 the British people gave a clear mandate for the UK government to leave the EU and take back control of our borders, laws, money and trade. It is disappointing that today the court has chosen to ignore their decision. This case is a plain attempt to block Brexit by people who are out of touch with the country and refuse to accept the result’. Lord Tebbit said: ‘Judges are out of their boxes these days and need to be put back in’. And the Daily Mail said that ‘the country is left with the profoundly disturbing impression of three members of an out-of-touch clique, prepared to countenance frustrating the clearly expressed wishes of 17.4million voters.’
In their ruling the judges denied that it had anything to do with the pros and cons of whether Britain should leave the EU and was concerned only with the law. The referendum had been advisory and parliament could not simply transfer its duty to make decisions on to the public. At least one prominent Brexiteer saw their point. Dominic Cummings, the campaign director of Vote Leave, said of the ruling that ‘at its heart it is reasonable’ and that Brexit supporters should take a ‘deep breath and stick to important principles of how a serious country works’.
If the ruling is upheld, the focus will shift to how MPs will react to the opportunity given them to shape the Brexit process. Even though it is estimated that 480 of the 650 MPs were in favour of Britain remaining in the EU, it is thought highly unlikely that many of them would openly defy the result of the referendum by actually voting to oppose invoking Article 50. Their influence is much more likely to be exerted over the terms of the Brexit deal. In order to conform with the judges’ ruling, the government will have to introduce a bill invoking Article 50. But it is inherent to parliamentary rule that bills can be amended and, whilst not challenging the principle of Brexit, MPs may wish to attach all sorts of conditions, making the final outcome very different from the one hardline Brexiteers believe the public voted for.
Nick Clegg, the former Liberal Democrat leader and deputy prime minister, has spoken of the need for MPs to ensure that Britain does not end up with a ‘self-harming’ Brexit. In particular, the issue of whether Britain should seek to remain in the single market or the customs union is likely to be a major point of contention, with hardline Brexiteers claiming that to do so would keep Britain still too attached to the EU.
Mrs May has told EU leaders that she intends to stick to her timetable of invoking Article 50 by the end of March but the parliamentary process may, at the very least, make this difficult. If MPs do use their powers seriously to disrupt the whole process of Brexit, the Prime Minister may conclude that she will need to eat her words about having no election until 2020, and instead call a snap poll in the spring to win a mandate on terms for negotiating Brexit that she, not MPs, lays down. With Labour electorally weak, she may calculate she could be returned with a large majority on the back of a campaign in which she presents herself as the champion of the referendum result.
What’s your view of this turn of events? Do you think it was justified to involve the judiciary in the first place? Do you agree with their ruling and in particular do you think it was arrived at purely with regard to the rule of law and without reference to the political arguments about whether Britain should or should not remain in the EU? Do you think the attacks on the judges as ‘out-of-touch’ and being willing to ‘countenance frustrating the clearly expressed wishes of 17.4 million voters’ is fair comment or not? If the ruling is upheld, do you think MPs should attach conditions to the terms of Brexit and, if so, which ones would you like them to attach? And do you think Theresa May should call an election on the issue?
Let us know your views.
