SUPREME COURT RULING: WHAT'S NEXT?
The Supreme Court ruled today that as expected, the Government is not able to launch Article 50 via Crown Prerogative meaning that it must seek Parliamentary assent. While constitutionally the Government could appeal to the European Court of Justice, politically it is unlikely to do so, since the PM has been at pains to say that the UK’s laws should be subject to the jurisprudence of UK courts only following BREXIT. The Attorney General and the Secretary of State for Exiting the European Union have said that the Government will comply with the ruling. A legislative response is expected from the Government, and most likely this will consist of a very short Bill, possibly even a single clause.
Will the Ruling Delay BREXIT?
Unlikely. The Bill will be prioritised by Parliament, since the Government has significant agenda setting control. However, the opposition parties have the opportunity to discuss the matters the Bill raises, and it is possible that amendments will be tabled. Although given that the Government has a majority in the Commons of 15, it will ultimately be able to whip the vote, and pass the Bill before the Recess that falls in the middle of February. The Lords would then have the opportunity to consider the Bill in time for it to become law before the end of March. This would meet the Government’s end of March deadline.
Will the Opposition Stymie Efforts?
As for the reception a Bill should obtain, Labour is confused and divided on the issue. Although the vast majority of Labour MPs supported staying in the EU and as many as 80 could vote against Article 50, the majority see little to be gained from trying to block May now. To be portrayed as ‘frustrating the will of the people’ by trying to overturn the referendum would be damaging at a time when the party is struggling to hold on to seats in the north of England, where the majority of voters backed Brexit.
More likely is that the party will seek to amend the legislation to give MPs more say over the process of leaving the EU. Keir Starmer is expected to call for a binding vote on the terms of the UK’s withdrawal, and more frequent insights from Government as to how things are progressing. The trump card here is likely to lie in the implicitly smoother ride from Labour peers in the Lords. Lest we forget, that is where some of the more forensic Committees that analyse EU outputs reside, and represent a considerable repository of expertise that could put a relatively new PUS Lords on the backfoot at the despatch box (quite aside from the numbers issues in the Lords for the Government – see below).
SNP has been more overt in its threat to table up to 50 amendments. The Government has involved the devolved administrations in the Joint Ministerial Committee, permitting them a strategic role in the Government’s approach toward BREXIT (although there remains a question mark as to how Northern Ireland should be represented while Stormont issues are resolved). However, as the Court also ruled unanimously today in some ancillary cases that were bundled together that devolved administrations did not need to be consulted, and did not have a right to veto Article 50. Dissatisfied with this outcome, the SNP is talking in even stronger terms about revisiting Scottish Independence. While the 50 amendments to the BREXIT Bill might not have a strong chance of being accepted, an independence vote, with its accompanying lourdeur and purdah and demands on central government would be an unwelcome distraction from the equally heavy demands of BREXIT itself. As such, the Government is likely to seek some resolution with the SNP.
Yet even opposition assent does not guarantee smooth sailing. The Government does not have a working majority in the Lords and there are 178 cross-bench peers. An unelected chamber opposing the Government on a constitutional matter poses something of an existential threat for the Lords and that makes their reaction somewhat unpredictable. While there are rumours of a potentially pyrrhic last stand by those in favour of Remain, it is likely that any operative/beneficial impact that such a stand would have would be resolved in via ping pong between the Lords and Commons. The Government’s self-imposed time limit of end of March (which is to the preference of a number of EU member states with Elections coming up) may give the Lords greater leverage in that regard than perhaps if the timeline had not been so clearly specified. The question is also whether those who seek to oppose the Bill can agree on what they would like to see in its place. The debate has moved on somewhat from the binary remain/leave of the Referendum, particularly as sectors have begun to submit their key asks. Either way, it would be a delicate matter for the Lords.
Conclusions
Today’s ruling alters the process, but it is difficult to conceive that this will materially change the Government’s negotiating stance as set out in the PM’s speech of last week. In the Commons, it is highly likely that a divided Opposition and a working majority will frustrate any attempts to block BREXIT or to substantially amend its content, albeit it may lead to some amendment of the process itself.
The Government’s majority can likely overcome the amendments that the SNP intends to table around the Article 50 assent legislation. However, the return of the debate on Scottish Independence might be deployed as a bargaining chip by the SNP for a stronger voice in the process, and the Conservatives might just be conciliatory in order to avoid a constitutional headache.
While the behaviour of the Lords is more difficult to call, the constitutional ramifications of a principled opposition are such that the Lords as an institution may veer more towards caution.
One thing that should not be forgotten, nonetheless, is the principle of parliamentary oversight that has been upheld by the Supreme Court. Parliamentary assent means that backbenchers during the negotiations can be more demanding of the Government in terms of updates and insights; it also means that the parliamentary vote on the final package (which was never in doubt) may be more than just a rubber stamp.
