A hearing in Luxembourg next week could help provide essential clarityby Jolyon Maugham / November 19, 2018 / Leave a comment
Last week Theresa May set out the three choices before parliament: “we can choose to leave with no deal; we can risk no Brexit at all; or we can choose to unite and support the best deal that can be negotiated—this deal.”
Looked at purely through the lens of our constitution her description is right: parliament is supreme and MPs can do what they want.
But it’s not just our own constitution that matters. Not everything is within parliament’s control. Just as its supremacy does not extend to constituting the moon as made of cream cheese, it cannot change EU law which is silent on whether the Article 50 notice can be cancelled. Is it within Britain’s power to revoke Article 50, or not?
The current debate tends to forget the celebrated Supreme Court decision in Gina Miller’s 2017 case on Brexit and parliament. This assumed that triggering Article 50 would have as its necessary consequence our departure from the EU. “When ministers give Notice they will be ‘pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply’”: that was how the majority characterised Lord Pannick QC’s successful submission to it.
Next month MPs will vote on the deal. Before that happens, they need to know whether they really do have May’s three choices—or whether Article 50 is irreversible, and we have in effect already left.
The answer could impact the calculations on both sides of the House. A constant in Labour’s Brexit policy has been that it is unthinkable to leave without a deal. Therefore, if Labour can’t win parliamentary support to take control of negotiations, and it is too late for parliament to choose Remain, the logical consequence should be that MPs support May’s deal as better than the unthinkable no-deal. They need to know precisely what their options are.
So too do the Conservative MPs who find May’s deal unpalatable.
Zac Goldsmith voted to leave the EU but, writing in Saturday’s Telegraph he said that, had the choice been between May’s deal and remaining in the EU, he would have chosen to Remain. Boris Johnson, too, has said the deal is worse than remaining. And so has influential MEP Daniel Hannan. How would they vote if confronted with a choice between May’s deal and remaining?
All things being equal, but subject to the outcome of a late Supreme Court challenge, the Court of Justice of the European Union will on Tuesday next week hear argument on this very question, in a case I have brought alongside a cross-party group of six Scottish parliamentarians: Joanna Cherry MP, Andy Wightman MSP, Alyn Smith MEP, Ross Greer MSP, David Martin MEP, and Catherine Stihler MEP.
There are three possibilities. The Court of Justice might say we’re stuck with the decision parliament made in March 2017 to leave the EU: Article 50 is not reversible. Or it might say parliament can reverse its decision to leave up until the date of our departure if the European Council agrees (Donald Tusk has indicated the EU would be prepared to give this consent). Or it might say we can revoke without the need for consent—the ideal outcome for those who believe that the best place to take decisions about the United Kingdom’s future is in our parliament.
And MPs really need to know. “Life,” as HL Mencken aptly put it, “is a constant oscillation between the sharp horns of dilemmas.” All parliamentarians must weigh the difficult choices before them. If Article 50 cannot be reversed, and Remain is off the table, then MPs, even those who believe May’s deal to be the lovechild of false promises and ugly xenophobia, may find themselves compelled to support it.
If, on the other hand, we can cancel the Article 50 notification, then even Leave-supporting MPs who believe May’s deal to be worse than Remaining might throw their weight behind a second referendum. The ERG’s unloved attempt to unseat the prime minister is evidence how thin is parliamentary support for no deal.
Late last week the government made a last gasp attempt to block that CJEU hearing. But it is vital that MPs have clear sight of the choices before them. Democracy, the rule of law, and the national interest all require it. This is not a game.