Today’s High Court ruling in Miller/dos Santos has provoked a flurry of reaction, across the board. To read the comments of some Remainers, this is the first step to reversing the referendum result and building a new, pro-EU consensus in the UK. For Leavers, it’s being called a travesty of democracy and justice.
As someone not (usually) prone to hyperbole, both positions strike me as unhelpful and wrong-headed. So let’s unpack a bit what’s what.
The case was launched on the basis that since leaving the EU would remove certain rights from the claimants, this needed the approval of Parliament, rather than just the executive submitting Article 50 notification. Both they and the Government took the position that starting Article 50 meant that the process was unstoppable (a view I’d disagree with).
The ruling has very much taken the line of the claimants and would seem to leave them with the whip hand when this goes to the Supreme Court, as the Government has indicated that it will appeal. A quick reading of the summary points to the limitations of royal prerogative powers and the centrality of Parliamentary sovereignty.
The case was only about the process by which Brexit happens: while some had talked in the immediate aftermath of the vote of taking the position that the referendum was only advisory, and that Parliament (with its large majority of pro-membership MPs) could overturn the result, that has very much faded…
There are various reasons for this. Most obviously, there has been a shift in political sensibilities now that there has been some reflection, and the idea that Parliament would sanction asking people for their opinion and then ignore it seems to fly in the face of popular democracy. Moreover, about 70% of constituencies had Leave majorities, so those thinking to be re-elected would be given a very big stick to their opponents.
Thus, even if the Government does lose its appeal, the result will be one where Parliament has to give its approval, which it will almost certainly so do. With a Supreme Court ruling possible by Christmas, that leaves enough time for a vote, even for an entire Bill. The latter would involve the Lords, who might delay a bit, but ultimately would be bound by the Parliament Acts, unless they wanted to shorten the path to their own reform.
There is a possible complication, should the Supreme Court decide to make a referral to the EU’s Court of Justice. This might be necessary if the reversibility of Article 50 became an issue, perhaps because the Government changed its position. However, even here the expedited process now available would allow for a three month turnaround, so the end-March deadline set by Theresa May is still possible. Which is good, because the thought of having to delay because of an ECJ ruling already drives Leavers wild with anger.
Of course, the irony in all this is that the entire case is about ensuring democratic oversight and control, the very agenda advanced by Leave. The key decision has already been taken, by the people in the referendum. Parliament cannot reasonably stand in its way, and the ECJ cannot do anything that impinges on the UK’s sovereign rights.
What might now change is the nature of the process.
Parliament might now get a vote, but it will also get a voice. It’s not hard to imagine pro-Remain Tories working with the opposition to demand much closer scrutiny and approval processes in the negotiations: the very ‘running commentary’ that has been so frequently held back. While the impact of that scrutiny might be weakened by the continued failure of the Labour party to work actively in holding the government to account, it is still something of value for the UK.
So the destination remains the same, but how we get there might be about to change.