Britain’s Supreme Court has on Monday begun hearing arguments over whether Theresa May has the right to trigger Article 50 without the prior approval of parliament. As the 11 justices convened in London this morning, it was hard to think of a more highly charged moment in relations between the executive and the judiciary.
The government will again argue, as it did at the earlier High Court hearing, that it has the right to trigger Article 50, the legal pathway to Brexit, using its prerogative powers. Its opponents will counter that parliament must be allowed a vote because Brexit will end up denying UK citizens rights that are enshrined in British legislation.
In the meantime, the pro-Brexit newspapers will keep a wary eye on proceedings, harbouring suspicions that the Supreme Court judges are pro-Europeans whose instinct is to scupper the “people’s will”.
As the hearings get under way, there is good reason to think that the stakes have been somewhat exaggerated. It may be that the Supreme Court does uphold the High Court’s decision that the Commons and Lords are entitled to a prior vote. But what would be the real political consequences of that decision?
Most MPs are certain to back invoking Article 50, knowing it would be political folly to appear to defy the referendum result. Nor is it clear that MPs will be able to tie Mrs May’s hands in a future negotiation by amending the Article 50 bill that she would be obliged to table. After all, the opposition Labour party is so divided and confused over Brexit, that it is not certain how much pressure it can apply.
But some lawyers and politicians believe there is a bigger issue that arises in this case: whether Article 50, once triggered, can be revoked at a later stage.
Let us fast forward to the spring of 2019 when Mrs May comes back from Brussels having completed negotiations for divorce from the EU and a future trading relationship with the bloc. The deal the prime minister has agreed will have to be approved by a Commons vote.
If MPs approve the pact, the UK will leave the EU. But if they vote the deal down, the consequences will arguably be more dire. This is because, on a strict reading of Article 50, a failure to reach a deal means that Britain will end up enduring the hardest of hard Brexits, defaulting to World Trade Organisation rules and entering a regulatory no man’s land.
Jolyon Maugham, a QC closely involved in the current case, says in Prospect magazine ;that this leaves parliament with no real alternatives if Mrs May comes back with a bad agreement. “Accepting the deal would mean shooting yourself in the foot,” he says. “Rejecting it and leaving without a deal means shooting yourself in the head.”
A question that Mr Maugham and other lawyers have therefore been asking is whether there should be a clear provision for Article 50 to be revoked in the event of parliament overturning Mrs May’s final pact.
A number of eminent people have said this is possible.
Jean-Claude Piris, a former director-general of the Council of the European Union’s Legal Service, argued in the FT some time back that the UK could change its mind. Lord Kerr, the British diplomat who drafted Article 50, has said it is “not irrevocable”. Donald Tusk, EU president, has said “there are no legal barriers” to reversing Article 50 if that is what the British want.
Even so, Mr Maugham says it would be helpful if the revocability of Article 50 were stated by a high legal authority. This is why he and other lawyers are hoping the Supreme Court will refer the question to the European Court of Justice.
A reference to the ECJ would cause uproar among Leavers because it might lead to further delays and imply that Britain is not deciding its future for itself. But Mr Maugham says it is vital that there is clarity on this issue because it is the only way the UK parliament can take a sincere decision on whether to leave the EU.
“A revocable notification means we get to decide whether to leave based on the evidence,” he says. “Not on a depiction of Brexit ripped from Dante’s inferno . . . but a decision based on opening our eyes.”
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Background reading
Crisis of representation The Brexit vote and the Italian referendum outcome reflect what Gramsci called a “crisis of representation”, as a new class of disadvantaged and disenchanted voters feel that they have lost both the political influence and the social protections that existed pre-austerity, say Marco Scalvini and Monica Fabris. (LSE Brexit Blog)
Norwegian model Borge Brende, Norway’s foreign minister, warns that there is no “silver bullet” over Brexit that would permit single market access without paying into the EU and being bound by some of its rules. Mr Brende is meeting his UK counterpart, Boris Johnson, as well as the Brexit secretary, David Davis, and the international trade secretary, Liam Fox. (Guardian)
The sky hasn’t fallen in Open Europe’s Vincenzo Scarpetta looks at the outlook for Italy in the wake of Matteo Renzi's referendum defeat and says that while Italy’s long-term trajectory has become more uncertain, it may not be as bad as some are predicting.
Beginning of the end? Britain’s vote to leave the EU has started the bloc’s “disintegration”, Sandro Gozi, Italy’s minister for European affairs, said in an interview on the BBC’s Today programme. Mr Gozi, an ally of outgoing Italian prime minister Matteo Renzi, argued that the referendum defeat in Italy represented a missed opportunity to reform European institutions and save the EU from falling apart. (Independent)
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