MPs squandered a golden opportunity in January 2017, in the aftermath of the Gina Miller Supreme Court case. The consequences are now all too clearby Mark Elliott / January 16, 2019 / Leave a comment
As well as distorting domestic politics almost beyond recognition, Brexit evidently has the potential to distort one’s perception of time. Given all that has happened since, it is hard to believe that only two short years have passed since the Supreme Court’s judgment in the Miller case was being awaited with bated breath. When, on 24th January 2017, the Court held that the government could not trigger Article 50 unless and until parliament empowered it to do so, the judgment was hailed not only as a legal landmark but also as a potential inflection point in the politics of Brexit. A government that had been intent on denying parliament a say in the initiation of the withdrawal process suddenly found itself in the legislature’s hands, incapable of taking Brexit forward without parliamentary authorisation.
At that point, parliament in effect held all the cards. But it played its hand extraordinarily badly, and has been attempting, often ineffectually, to play catch-up ever since. The upshot is that the Miller case, for all that its outcome was pregnant with possibility, ended up as a victory sounding principally in the realm of constitutional symbolism, as distinct from that of political reality. This is not to deny that Miller addressed a set of fundamental legal questions. Nor is it to deny that Miller’s impact was felt in the political world. For one thing, the time consumed by the judicial process likely delayed the triggering of Article 50. For another, the judgment put the government to the trouble of getting legislation, empowering it to activate the withdrawal process, through parliament. The requirements of legal and constitutional propriety were thus, according to the Supreme Court, satisfied.
But as soon as the content of the legislation precipitated by Miller is examined through the prism of subsequent events, the judgment’s status as a political damp squib becomes hard to deny. If there was ever a time in the Brexit process when parliament had leverage over a government that has, throughout, been intent upon maintaining tight control, the period between the Supreme Court’s judgment in Miller and the enactment of the requisite legislation was it. At that point, parliament could have opted to put itself, at least to some extent, in the driving seat. It could, for instance, have legislated so as to give the government…