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Open Europe's new director Henry Newman assesses the political consequences of the Supreme Court's landmark judgement.
24 January 2017
It seems likely that the prime minister’s Brexit timetable will not be significantly affected by the government’s defeat in the Supreme Court. Lawyers and legal analysts will pick over the broader implications of the judgement but the country’s highest court has ruled that the government lacks the legal authority to trigger Article 50. Theresa May must now pass a bill through Parliament to enable her to make Brexit mean Brexit.
R (Miller) v Secretary of State for Exiting the European Union must count amongst the most significant constitutional cases ever brought against the UK government. Indeed, it marks the first time that all Supreme Court justices have sat together since the establishment of that court in 2009. We could expect that any government that lost such a high-profile case would face a major political crisis.
Firstly, despite her slim majority in the Commons, the prime minister looks to have succeeded in seeing off most potential Conservative opposition and uniting her party behind exit from the single market. Her Lancaster House speech last week went down well with MPs and there seems to be a strong desire to move on from the divisions of last year. It’s possible that just one Tory MP will vote against the government, meaning that the Article 50 bill (required to satisfy the verdict of this case) ought easily to pass the lower house. Three months ago a wider rebellion was expected.
Secondly, the opposition is weak and divided. Jeremy Corbyn and his Labour front bench are unclear about whether they will or won’t whip their MPs (and peers) to vote with the government. But the very fact that they are likely to at least “ask” them to vote for Article 50 will strengthen the prime minister’s hand. If a strong majority passes the government bill in the Commons, the Lords will find its position weaker. In the Lords there will be more opposition – and the government lacks a majority – but many peers will be loath to push things too far. They know that blocking the desire of the Commons on Article 50 would trigger a constitutional crisis (and, ultimately, threaten its own position). And of course, if many Labour peers back the government, the bill will comfortably pass.
Thirdly, the broader context has changed. The prime minister’s position seems far stronger than when she lost at the divisional court back in November. Last week’s Lancaster House speech enjoyed widespread public support, the economy has so far proved more resilient than many had expected, and the new American president is an anglophile and says he’s determined to make Brexit work.
Fourthly, this defeat was widely anticipated. The case in the divisional court was heard by two of the very most senior members of the judiciary – the Lord Chief Justice and the Master of the Rolls. It was always unlikely that a case heard by two such important authorities would be overturned. Back in November commentators were predicting a virtually unanimous decision against the government – that three justices have dissented will be seen as an acknowledgement that the question was more finely-balanced than some suggested.
Much will depend on the precise wording of the bill that the government chooses to introduce. A tightly-drafted law will limit the ability of critics to attach amendments, squeezing concessions out of the government. But the government may also be tempted to use the bill to tidy up other legal loose ends – such as our membership of EU-associated bodies.
We don’t expect the Government to accelerate the timetable for triggering Article 50 – they’ve committed to doing so by the end of March and bringing that date forward would simply start the two-year countdown clock further before this year’s crucial French and German elections.
Some have questioned the wisdom of the government appealing the case but this was not just a stubborn political mission. There was strong official support for the appeal and a view that it was important to establish the limits of the royal prerogative. The narrowness of the judgement has, to an extent, vindicated this position.
On Scotland, Wales and Northern Ireland, the judges were in a difficult position. Either they ruled that the devolved legislatures ought to be consulted before the UK government triggers Article 50 thus provoking a constitutional crisis by enabling the SNP to block Brexit; or they decided that the Scottish parliament has no authority potentially inflaming those who are already questioning the court’s legitimacy. By unanimously agreeing with the government that there is no duty to consult the devolved administrations, the judgement has avoided a short-term crisis.
Back in November some on the Continent, and even here in the UK, expected that the courts would use this case to kill off Brexit. The debate was bordering on febrile. Today, the Supreme Court’s President, Lord Neuberger, was careful to speak of the “great political significance” of the referendum result. The Attorney General confirmed that the government would respect the court’s judgement and the Lord Chancellor has stated her strong support for the rule of law and the independence of the judiciary. The judgement will have implications for the executive’s constitutional powers but in terms of Theresa May’s Brexit programme it will change little. We will see more of the government’s next step with David Davis’s statement later today.