December 11, 2016    6 minute read

Brexit In The Courts: A Supreme Sideshow

Political Playground    December 11, 2016    6 minute read

Brexit In The Courts: A Supreme Sideshow


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The UK’s Supreme Court has now finished its hearing on Brexit, drawing to a close one of its most high-profile cases in history. Earlier this year, the High Court ruled that Parliament’s approval would be needed before invoking Article 50 of the Lisbon Treaty and beginning negotiations for Britain’s withdrawal from the EU.

The Government then appealed the decision in the hope that the highest court in the land might find in favour of letting Theresa May trigger Brexit without taking a bill to the House of Commons. But the historic nature of the case, in which the Supreme Court ventures into what is without a doubt unchartered territory in the British constitution, sits awkwardly next to the fact that it might end up counting for very little after all.

The Steady Road To Brexit

The High Court’s decision a few weeks ago stopped the Government from invoking Article 50 by essentially ruling on what its executive powers can and cannot be used for. The ‘royal prerogative’ – which refers to the Government’s power to act without Parliamentary approval, including (for example) in international affairs and treaties – was deemed inappropriate for May’s Brexiteering ambitions. The judges decided that since invoking Article 50 would inevitably change UK law, Parliament would have to approve it.

As argued previously, the decision as it stands is unlikely to have a major impact because there is simply not enough appetite among MPs to block Brexit outright. Labour is brimming with MPs who want avoid a snap general election at any cost, and there is no chance of a significant rebellion from the Conservatives’ ranks. This means that the Government can call any bluffs on the Article 50 vote and, as a result, has virtually no need to respond to Parliament when it comes to the shape that Brexit takes.

Not much has changed since. Some commentators have looked to the recent Richmond by-election, in which Lib Dem Sarah Olney defeated the outgoing Tory Zac Goldsmith on an anti-Brexit platform, as evidence that Conservative MPs in pro-Remain constituencies should be just as fretful over their positions as Labour MPs in pro-Leave areas. But Labour stands to lose a great many more MPs as a result of this effect. And according to the latest polling, the Tories lead Labour 42% to 25% – Labour’s lowest since the Gordon Brown era. Meanwhile the Lib Dems trail at 11% despite their self-proclaimed comeback.

No Real Opposition

If this was not enough to mute expectations of an anti-Brexit revolt, the latest developments in Parliament show just how little opposition the Government faces on Brexit. MPs backed a motion approving the Prime Minister’s Article 50 timetable by 448 to 75. Only 23 Labour MPs and one Conservative MP opposed it.

Admittedly, they did approve it on the condition that May’s government lays out its Brexit plan before Parliament. But the motion dictates no particular degree of detail for the plan, for a start. It could be as simple as a few short bullet points outlining aims that the Government is already known to have, such as wrestling immigration control rights from the EU. And, crucially, there is nothing to suggest that the plan will be binding – the motion does not specify whether the Government has to table legislation or simply publish a few preliminary proposals.

Shadow Brexit secretary Sir Keir Starmer has said that plan will have to clarify key issues such as whether the Government aims to remain in the customs union, but Labour has yet to explain how the motion will enable it to extort this information from the government.

A Supreme Sideshow

It is no surprise, therefore, that the media is not bothering to pore over every drip of dry legal deliberation that has come from the latest hearing. Nor is it any wonder that some have asked whether the case is a waste of time. If the Supreme Court rejects the Government’s appeal, May and her cabinet are in good stead to carry on as usual.

The public will have to wait until January to be told for certain, but from the live stream of the case, there has not come much to suggest that the Government could eke out a surprise victory.

For a start, it seems unlikely that the judges could be convinced otherwise when it comes to the arguments covered by the High Court ruling, which mainly came down to the threat that Article 50 poses to the EU rights which Parliament voted to domesticate as UK law in 1972. The claimants stuck to this focus in the Supreme Court, with Lord Pannick QC saying:

“The idea that ministers could revoke this fundamental change to our constitutional order is inherently unlikely.”

Government lawyers, though, have tried to shift the focus onto other arguments – for example, by going back to the 2015 Act of Parliament whereby MPs authorised the referendum in the first place. Critics have previously been quick to point out that the referendum was not legally binding.

James Eadie QC argued in court that:

“The 2015 act in effect involved Parliament deciding to put, to the final decision of the people, the in/out question. We submit, therefore, that whether it said things or didn’t say things, whether it was silent or not, it still carries real constitutional significance.”

Expect No Surprises

But there has been no mention of any legal precedent establishing the “constitutional significance” of a referendum. So if the judges side with the Government on this, it would be a radical endeavour into untested grounds. This is possible but unlikely: it is well known that both the Supreme Court and the Law Lords who preceded its establishment seven years ago have always been reluctant to intervene on matters of politics. There is little appetite for a move towards a US-style Supreme Court.

Some Brexiteers in the media and the government have taken the view that the Supreme Court would be overstepping the boundary between judiciary and politics if they were to uphold the High Court ruling anyway. Regardless of whether their arguments hold up constitutionally, however, it seems the judges and the wider legal clique of constitutional lawyers are fairly hostile to this idea. Soundbites aplenty have come from the judges insisting that their purpose is not to decide on Article 50.

Even if there were an avenue for the justices to head towards establishing some new relationship between a non-binding referendum and an Act of Parliament, they already have before them the means to come to a judgment using only existing constitutional principles by rejecting the Government’s appeal. It seems a safe bet to expect them to play it safe.

It is safe to expect, therefore, that come January the Government will still have a hold over Parliament regardless of the outcome of the Supreme Court decision. It might be unfair to say that Theresa May will have a carte blanche when it comes to negotiations, but she and her cabinet will only be constrained by the wishes of her EU counterparts and the need to maintain a working level of popularity – not by her opponents in Parliament.

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