"Remainers" are up for a fightby Elizabeth Prochaska / January 24, 2017 / Leave a comment
In its judgment in the Miller case, delivered this morning, the Supreme Court ruled that the government could not trigger Article 50 without an act of Parliament. The government had argued that it could use prerogative powers—the rag bag of executive powers left over from Britain’s days as an absolute monarchy—to begin the withdrawal process from the EU. But the Court proved itself the true guardian of parliamentary sovereignty by insisting that the process for Brexit depended on parliamentary consent.
In the turbulent months after the referendum, there seemed some promise that the intervention of the courts would bring order to the chaos and Brexit might be stopped, or at least delayed. But politics has moved on. After the High Court decision in November, Theresa May prepared a draft bill authorising the government to make the Article 50 declaration and the Supreme Court judgment no longer holds momentous political significance. No doubt that’s why Liz Truss felt able to issue an unusually gracious statement praising the independence an integrity of the judiciary.
There was some speculation, following extra-judicial comments by Brenda Hale, Deputy President of the Supreme Court, that the judges would direct the form that the legislation should take. That was always unlikely—after all, this was a decision about parliamentary sovereignty—and the judges held that “what form such legislation should take is entirely a matter for parliament.” The bill can be as long, or as short, as the government desires. David Davis has said it will be “straightforward,” suggesting the government will opt for a short bill. It will need to follow the usual legislative process and obtain consent from both Houses of Parliament, but its safe passage is almost certainly assured.
The most important implications of the judgment are likely to lie not in the conclusions on parliamentary sovereignty, but in the decision on devolution. The High Court did not consider arguments about the power of the Westminster Parliament over the devolved assemblies of Scotland, Wales and Northern Ireland. But when the government appealed the original decision, the devolution issues were referred to the Supreme Court by the Northern Irish Court of Appeal, and addressed by representatives for the governments of all the devolved administrations. This made the government’s…