Back in December, Jolyon Maugham wrote that the important thing when the Supreme Court rules on Article 50 will not be the resultby Jolyon Maugham / January 24, 2017 / Leave a comment
Today from 11am the Supreme Court will begin to hear the government’s appeal against the decision of the Divisional Court. And only one thing matters.
And it’s not the result.
Even if the government loses, and the Supreme Court declares that our constitution requires that parliament authorise the loss of rights that our departure from the EU will entail, the practical consequence is likely to be modest. Parliament will be asked to enact a single clause Bill authorising the government to trigger Article 50. But with Labour hopelessly divided the Commons will assent, and likely without conditions. And, unless the Commons puts up a fight, the Lords will not put up serious resistance either.
It should be a matter of genuine sadness to all who love our country and want to see it united that the government intends to respond only to the form of our constitution and not its substance. It is only through a discussion about the Brexit we want to have that the nation can come together. And the act of placing before parliament an “amendment proof” Bill is a choice to quell that discussion rather than invite it. The voices of the 48 per cent will be shut out. And our country will become more divided still.
So, not the result of that appeal—but a procedural question.
Will the Supreme Court refer to the Court of Justice of the European Union the question of whether a notification given under Article 50 can be unilaterally revoked? That is a question of construction of a provision of European law. If it is necessary to decide it to determine the outcome of the appeal—and many lawyers believe that it is—then as a matter of law the Supreme Court must make a reference.
And the reason why it is the only thing that matters is this.
If a notification, once given, cannot be revoked then the Executive will have a free hand to negotiate the terms upon which we depart from the EU. Whatever deal it comes back from Brussels with is one parliament must accept. Because it will have no alternative. Accepting that deal might be shooting yourself in the foot; but rejecting it and leaving without a deal…