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What the High Court ruling does (and doesn’t) mean

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.

So what?

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.

3 Responses to What the High Court ruling does (and doesn’t) mean

  1. avatar David Burns says:

    Now that parliament may get to vote, it is crucial to lobby with the message that the Brexit referendum was not democratic. Over 3 million EU citizens were not allowed to vote. These are people who are legally resident in UK, paying taxes & contributing to our economy & public services.
    No MP should feel morally compelled to vote for Brexit on the misconception that there has been a democratic mandate

  2. avatar wg says:

    @David Burns – If you, and others, had shown the same concern for the democratic process when the Lisbon Treaty was being rammed down our throats, the outcome of the EU referendum may have been different.

  3. avatar Rick Harang says:

    The first question to ask is why the PM doesn’t simply follow the High Court ruling with a simple Bill which is said to have been prepared.
    From a neutral standpoint, the Supreme Court poses possible threats which she could avoid. One is the need for prior repeal of the 1972 Act and another is the, at present, unknown capacity of the devolved assemblies to derail the process.
    By going into battle with an unamended argument about the revocability of Article 50, the Law Lords have no need to rule on that point. They accept it as a given and no party to the proceedings causes them to be seized of that issue. It is therefore agreed (irrespective of whether this is correct or otherwise) that triggering the Article starts an unstoppable clock which must, of necessity, impact upon legislation without Parliament’s approval and, for that matter, without the approval of any of the devolved assemblies.
    I have tried to understand why the PM considers the risk of being given yet more constitutional hurdles worthwhile. Obvious candidates as reasons would be a combination of stubbornness, bad advice, the belief that she has to hold her cards close to her chest and that too much openness in parliament will damage her negotiating strategy with the 27. There’s also the worry of an unsightly parliamentary thrash causing even deeper divisions within her party making it less electorally appetising whilst making it even more difficult to arrive cohesively at a coherent strategy. All of these make sense.
    I can also understand the reluctance to argue that Article 50, once triggered is revocable. It’s a case of closing the door behind her as she approaches the negotiating table.
    Nonetheless, it’s a huge risk. Whilst it may seem an unlikely outcome, a 10% chance of a Scottish veto ought to loom very large in her thinking. Prior repeal of the ECA1972 and the need for comprehensive legislation to fill the gaps would be another nightmare.
    I like conspiracy theories but recognize them to be flights of fancy which might just happen to be true in some cases. Could it be that for all her protestations to the contrary, the PM is at one with Hammond on this and would be happy to lose? Imagine asking the nation if it wants to go to the ECJ. That would make for an interesting second referendum.
    Sadly, I’m unconvinced that this conspiracy theory can be made to fly. Absent such a conspiracy, however, I would say she’s taking a huge risk in her efforts to prove that, like a certain predecessor, she’s not for turning.

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