Overall, it’s a good day for the British constitution – the Supreme Court has demonstrated both its independence from the Government and its multiplicity of legal opinion by delivering a majority verdict, split 8-3, that Parliament must legislate to trigger Article 50.
For some, the judgment takes on a vast and energising meaning that it doesn’t really merit. The Lib Dems, and other hardcore Remainers, dream that it will offer a chance of blocking Brexit. Some of the more excitable Leavers fear the very same.
In reality, as we have been predicting for some months, it doesn’t threaten Brexit one bit. The Commons will surely pass the Bill, aided by Tory commitment to honouring the referendum and Labour fear of a revolt among their voter base. The Lords are unlikely to try to block such a large democratic vote, given their own unelected status. If they did, Conservative MPs already mutter about deploying the Salisbury Convention to enforce the Conservative manifesto’s commitment to “honour the result of the referendum, whatever the outcome”. Douglas Carswell has even raised the possibility of the Government creating hundreds of new peers, if necessary, to force Article 50 through – effectively a repeat of George V’s threat which forced the passage of the People’s Budget in 1910. In short, we will still leave the EU.
Many have wondered why the Government chose to appeal the case in the first place. The fact that three of the Supreme Court’s members felt able to agree with the Government’s position suggests it was not entirely without legal merit, though that’s now by the by. More importantly the decision to appeal the High Court’s decision has paid some dividends, more by accident than ministerial design. The Supreme Court verdict actually aids Brexit by striking out two potential threats.
First, the judges have rejected the idea – touted by the court’s own Lady Hale among others – that the Brexit Bill would need to be long enough to replace the 1972 Act. In fact, it could be “very short indeed”:
“What form such legislation should take is entirely a matter for Parliament. But, in the light of a point made in oral argument, it is right to add that the fact that Parliament may decide to content itself with a very brief statute is nothing to the point. There is no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity. A notice under article 50(2) could no doubt be very short indeed, but that would not undermine its momentous significance.”
The Government plans to introduce just such a short bill – and now the diehards who still want to keep us in the EU are denied the chance of another legal battle over the question of its length.
The Supreme Court also took the opportunity to demolish the argument that the devolved administrations in Cardiff, Holyrood and Stormont could wield a veto over Brexit:
“The Lord Advocate and the Counsel General for Wales were correct to acknowledge that the Scottish Parliament and the Welsh Assembly did not have a legal veto on the United Kingdom’s withdrawal from the European Union. Nor in our view has the Northern Ireland Assembly.”
Predictably, the SNP are now fuming and mumbling about the prospect of a new referendum or UDI. But then they seem to do so in response to any news, from the football results to the weather forecast, so that’s nothing new. What matters is that the Government is now free from the prospect of a legal case brought by Nicola Sturgeon in the middle of the Article 50 process.
Exactly what form the Brexit Bill will take won’t be known until at least David Davis’s statement in the Commons later today, and possibly later. In their pursuit of the slimmer and slimmer chances to frustrate the process, the remaining Remainers will no doubt seek opportunities to amend it. If reports in The Times are correct, however, Commons clerks have already warned the Opposition that amendments which seek to restrict the eventual terms of post-Brexit arrangements will be ruled out of order. Again the options for sticking a spanner in the works of Article 50 are reduced.
Today’s judgment is certainly interesting on a constitutional basis. It will sculpt the history of Brexit, to an extent, but it won’t prevent it from happening. And ultimately, it simply means that Parliament will vote to free our country from the European Union. That feels like an appropriate way to mark the success of a campaign to restore parliamentary sovereignty.