Back in December, Jolyon Maugham wrote that the important thing when the Supreme Court rules on Article 50 will not be the resultby / 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 is shooting yourself in the head. This may not matter if you think the government will return laden down with gifts bestowed by a benevolent 27. It should alarm you if your expectation is of a less accommodative negotiating partner.
But if the notification can be revoked then two consequences of profound importance follow.
The first is that the Executive—relevantly composed of three buccaneering Brexiters—must negotiate mindful of what parliament is likely to find acceptable. Unless it does, parliament will reject the deal. A revocable Article 50 is more likely to deliver what parliament decides is a good Brexit.
The second is that it opens the door to the possibility that we “Remain.”
If, when the Brexiters return with their deal, the economy has tanked; if inflation is rising and living standards have slumped; if the deficit has ballooned; if the deal is a poor one, the only winners will be door manufacturers. Across the country they will be hard at work replacing those kicked down at constituency offices by voters demanding a fix. MPs will reject the deal—or more likely demand a second referendum—and we will “Remain.”
A revocable notification means we get to decide whether to leave based on the evidence. Not on a depiction of Brexit ripped from Dante’s Inferno. Nor on a Soviet Realism vision of increased crop production. But a decision based on opening our eyes.
On the 17th of January, Prospect hosted a roundtable discussion with the contributors to: Brexit Britain: the trade challenge. This report is designed to act as a guide for parliamentarians, officials and businesses with a stake in the UK’s changing relationship with the world following Brexit. The discussion was chaired by Tom Clark, Editor of Prospect. Participants included Tasmina Ahmed-Sheikh MP, Miriam González and Vicky Pryce.
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