Gina Miller speaks to the media at the High Court in London after three judges ruled against the Prime Minister’s decision to trigger Article 50 and start the UK’s exit from the European Union without the prior authority of Parliament. (Photo: Dominic Lipinski PA Wire / PA Images)
When Theresa May was all set to flick the switch on Brexit in the spring of 2017, it was because of something called “Royal Prerogative” – once a dusty legal term, now about to become the buzzword of the hour.
What it means is that there are lots of things that a government does that it doesn’t need to talk to Parliament about. Theresa May doesn’t need a fresh vote every time she wants to do something. So long as legislation isn’t required – Parliament’s business – then she can do it. Even when it comes to going to war, she can simply instruct the Armed Services. Technically, it was Royal Prerogative that took us to war in Iraq – the vote was merely consultative.
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Unfortunately, in the case of negotiating Britain’s withdrawal from the EU, it turns out we do need to think about passing laws. In this instance, it’s the 1972 European Communities Act – which took Britain into what is now the EU – that’s at the centre of the judgment released yesterday. Leaving will mean tinkering with that. So Parliament needs a role. All of which probably has government ministers laying out their hara-kiri toolkits; Thursday’s ruling was a big blow to their ability to steer through already complicated waters.
Already, some are teasing the idea of an early election – the idea being that, with a Parliamentary mandate from the electorate, the PM would be unshackled from her present bind.
In reality, this decision reduces that prospect to vanishing point. When the issue is this big, a potential “Let’s Elect a Parliament to Decide Whether or Not to Do a Brexit” election opens a Pandora’s box of counter-schemes, pacts and shocks. No one – especially no one with the natural caution of May – would try it on.
For now, though, there’s an immediate lull. What happens next is that there’s a re-match. Only, this time, it’s personal. Most likely on the 5th of December, the government will have a chance to re-state their position in the only court higher than the High Court – the Supreme Court.
The Supreme Court has only been around for a decade, replacing the Law Lords, and it’s a mark of just how significant a constitutional crisis this whole thing is that this may well be the first time all 11 Justices will be considering the same case.
Should they rule against Gina Miller, the chief plaintiff in this case – a lawyer from the firm Mishcon de Reya who helped crowd-fund an anti-Brexit group called The People’s Challenge – then everything goes back to roughly what it was, except with a few more grey hairs and crow’s feet among government ministers.
How likely is that? Well, the Constitutional Law Association seems to think it’s a long-shot.
Put simply:
“The government cannot take away rights given by Parliament and it cannot undermine a statute. For the courts to hold otherwise would place the rights of British citizens at the mercy of the government and would be contrary to Parliamentary supremacy.”
In fact, as much as the Leaver commentariat might rage at yesterday’s outcome like Democrats at an FBI Director, lawyers seem to see it as an inevitable part of the way our Constitution is structured. But that doesn’t mean that our Constitution isn’t about to be tested to its limits by the tectonic forces this decision has unleashed.
In one sense, it would be to risk a real molotovs-n-roadblocks revolution for Parliament to actively vote against triggering Article 50. Yet, there are already MPs at the margins who claim they will defy the result of the 23rd of June. Most notably, Tottenham’s David Lammy, who has already popped up on BBC News claiming the vote was merely “consultative”. If members like Lammy could change the terms of the debate into one in which, in accordance with what the High Court said yesterday, that Parliament is where sovereignty resides, they could potentially extract concessions from a skittish government that would fear losing the Article 50 vote.
READ: The Vote on Article 50 Gives Labour a Chance to Make Brexit Less Terrible
The pro-Remain majority in the Commons is 454 to 147. If Labour, scenting blood, could force a last-minute defeat onto the government along the lines of Ed Miliband’s sudden about-turn on Syria, that would be devastating. Like Miliband, they could couch it in subtle procedural arguments rather than sticking a simple two-fingers up. Already this has been Corbyn’s strategy – endlessly nagging Theresa for a “blueprint”, then trying to pull it apart in a death by a thousand cuts.
At least after Cameron resigned there was a plan-about-how-to-get-a-plan. This time around, The Courts, The Government, Parliament and The People would all be at loggerheads. The will of The People would be to Leave. Of Parliament to Remain. Of The Government to Leave. And of The Courts to side with whatever Parliament said. Who wins? Who knows?
But that’s only the threat, mainly hypothetical. What MPs want – and what they now hold some cards of getting – isn’t to reverse the decision entirely, but to have influence over its direction. They could agree to vote the government’s way in triggering Article 50 in exchange for a deal over the terms: that we remain members of the EEA (and thereby abide by free movement), that we stay inside a customs union, anything.
The distinction being made is that the public has voted on the need for Brexit. But Parliament – as their representatives – gets to decide the kind of Brexit. This could effectively make any negotiations an intensely unwieldy three-way shuffle, where the PM goes to Brussels with certain things she is allowed to ask for, and then Europeans tell her she can’t have any of them, and then Parliament has to re-approve fresh demands.
All of which would utterly screw Theresa May’s negotiating strategy. Precisely the reason that Brexit can only mean Brexit-squared is that the PM needs to go into Brussels with a Nuclear Option with which to threaten the EU into offering more favourable terms. If she has only a potato gun for threatening purposes, we will be crushed under the EU’s superior economic weight.
The outside-option remains, though: Theresa May has push-back because the moment Article 50 is triggered, a clock is running down on Britain’s EU membership. If, two years on, negotiations have proved inconclusive, then we’d get a Hardest of Hard Brexits, the immediate imposition of WTO tariff levels,and a nasty snarl of temporary economic chaos.
All of which is still unlikely, because no one has an incentive to get there – not May, not the Remainers and not the EU. So at the very end, they’ll do a much more sensible deal. What Lammy, Miller and the many heartsore Remainers around them would like to see is a re-frame in the language around whose Brexit this is.
Yesterday, they got that, and whatever the legal machine spits out from now, it’s still a big win.
This article was updated on Friday morning to take account of new developments.
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