I am puzzled by the Supreme Court decision that Parliament must have a vote on whether the UK government can start the Brexit process. But it’s not the decision itself that perplexes me – more the hysteria that seems to surround it.
Every lawyer I’ve spoken to – from my Sunday evening QC tennis opponent to the newest Trainee Solicitor – felt that the government’s case stood no chance of success. You only had to read the High Court’s well-reasoned judgement to see how futile the government’s case would be on appeal.
And so it transpires. The Supreme Court, by an 8-3 majority, dismissed the government’s appeal against the High Court’s decision in November that an Act of Parliament is required to authorise ministers to give the Article 50 Notice of the decision of the UK to withdraw from the European Union. The judgment mirrors the High Court’s decision and confirms that the government does not possess the prerogative powers to trigger Article 50 without further Parliamentary approval.
Whatever further rabid “Enemies of the People”-style spin certain parts of the media may put on this, the Supreme Court did exactly what it had to do: uphold the law. The Supreme Court’s decision has not overturned the Brexit referendum result. It has merely confirmed the lawful way in which the UK may exit the EU. The 11 Supreme Court Justices have ruled that it is for Parliament to decide on how to proceed.
There still remains some uncertainty on the process of consulting Parliament and, crucially, the additional time and other constraints that the process will now involve. But that, of course, is a matter for the government not the court system.
The Supreme Court’s judgment creates issues for the government, including how to uphold the pledge to trigger Article 50 by the end of March 2017. And one can’t help but think that the real impetus behind the government’s determination to oppose the legal case was the fear of what might happen in Parliament if and when MPs come to debate Article 50. The government’s nightmare scenario must be that many of its MPs vote their own beliefs and not their constituents’ referendum views – which could actually justify the sort of scorn mistakenly poured on the judiciary.
As with much of the Brexit process, the next steps are uncertain. It’s not yet clear whether consulting Parliament will involve the drafting of primary legislation (a new bill) addressing the myriad of rights and laws created by EU membership or merely a motion in Parliament that only poses one question i.e., whether or not to invoke Article 50.
Given the prime minister’s strong expressed position on Brexit, it’s unlikely that the decision to leave the EU will be challenged or reversed through the process of consulting Parliament. But consultation could delay the timetable to leave the EU, prolonging the current uncertainty for businesses.
There’s a practical downside for the government, of course – in that the process of consulting Parliament may force it to reveal its strategy for EU negotiations. That might provide clarity to the public but it would also weaken the government’s bargaining position once Article 50 has been invoked and the negotiations with the rest of the EU member states commence.
So where does the Supreme Court decision leave businesses attempting to grapple with the practical realities of Brexit? Not much wiser, I’m afraid, although at least there are signs that the phony war may be over and the time draws closer when specific Brexit-related changes may become known. The full impact of Brexit on UK businesses is still unclear, but proper planning can help minimise disruption, smooth the transition, and may provide opportunities to organisations as Britain prepares to leave the EU.