Brexit in the Supreme Court, and after: your questions answered

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The Supreme Court will be the centre of political attention this week when the government’s appeal of last month’s High Court ruling on the triggering of Article 50 is heard. Robert Hazell and Harmish Mehta offer an overview of what the case is about, the likely outcome and its implications for the Brexit timetable.

The Brexit appeal to be heard by the UK Supreme Court (UKSC) from 5 to 8 December is the constitutional case of the century. All eyes will be on the Court hearing (which is to be broadcast live). And not just in Britain, but around the world. In recent weeks Robert Hazell has been advising foreign embassies, banks and investment managers from New York to Tokyo about the significance of the case, and the consequences which may flow from the court’s decision. They were particularly concerned about the impact on the timetable, the likelihood of the government getting authorising legislation through parliament, and the possibility of Brexit being delayed or even aborted. Here are some answers to their most frequently asked questions.

What is the case about?

On 3 November the High Court ruled that it was unlawful for the government to use prerogative powers to trigger Article 50 of the Lisbon Treaty to start the negotiations for Brexit, without reference to parliament. The government accepts that the judgement requires legislation to authorise the triggering of Article 50. But it has appealed to the Supreme Court to have the judgement reversed. All 11 Justices will hear the appeal from 5 to 8 December in a packed timetable. Their judgement is expected in January.

What is the likely outcome?

The case has generated huge interest amongst constitutional lawyers. Initial comment was strongly supportive of the High Court judgement, but since then the 30 or so commentaries on the UK Constitutional Law Blog have been more evenly divided. The government is likely to lose the appeal, because it has not significantly shifted its ground from the arguments it advanced in the High Court. In particular, it still maintains that Article 50 is irreversible: once triggered, it leads inexorably to the UK’s departure from the EU. The reasons for that are political: the government does not want to allow the possibility of second thoughts. But it seriously weakens the government’s legal case. It enabled the claimants to show that triggering Article 50 would lead inevitably to the abolition of statutory rights, such as the right to vote in European Parliament elections, and the alteration of UK statutes. They then argued that under a series of cases going back to the seventeenth century, statutory rights can only be abolished and UK statutes can only be altered by another statute, not by the prerogative.

What about the case from Northern Ireland, and interventions from Scotland and Wales?

The Scottish and Welsh governments have been given leave to intervene. They argue that the UK government cannot trigger Article 50 without the UK parliament’s consent because that would alter their respective devolution settlements, and that that in turn would bring into play the Sewel convention, under which the UK parliament is expected not to legislate on devolved matters, or to change the powers of the devolved institutions, without their consent. These arguments will give further weight to the lead claimants’ main argument, that statutory rights cannot be abolished, and UK statutes cannot be altered, by the prerogative.

A second set of cases before the UKSC comes from Northern Ireland. Steven Agnew and others will argue that the UK parliament’s consent is needed and that the Northern Ireland Assembly’s consent is expected to be sought. The Attorney-General for Northern Ireland opposes all of Agnew’s arguments. Raymond McCord is another Northern Irish claimant. He will argue that Article 50 cannot currently be triggered at all, as that would be a ‘fundamental change in the constitutional status of Northern Ireland’, which requires the consent of the Northern Irish people, who voted against such a change in the referendum. This is a radical argument which is unlikely to succeed.

Will there be a further appeal to the European Court of Justice (ECJ)?

Although the UK government maintains that triggering Article 50 is irreversible, many constitutional and European law experts disagree. The Supreme Court may want to inquire into the reversibility of Article 50, because it is so central to the case. But the interpretation of Article 50 is a matter of European, not UK law, and therefore a matter to be referred on to the European Court of Justice. That would delay matters further, and be very unpopular with Brexiteers. Several commentators have suggested ways in which the Supreme Court could decide the case without reference to the ECJ (for example, Georgopoulos and Barczentewicz).

Are there going to be other legal challenges?

Brexit is going to be dogged by legal challenges. This case is just the first salvo. On 28 November another possible challenge was announced. A group called British Influence believes that leaving the EU does not mean leaving the European Economic Area (EEA), which requires separate notification under Article 127 of the EEA Agreement. Because Article 50 is wholly uncharted territory, there is scope for legal challenges at every step along the way.

What will happen to the government’s timetable?

If the Supreme Court rules that legislation is required, the government risks missing its deadline of triggering Article 50 by the end of March. It will likely introduce a short bill, just one or two clauses, which it will seek to pass as a matter of urgency. Bills have occasionally been passed through parliament in a few days, or even a few hours. But that can only happen if both Houses recognise the urgency, and support the bill. Crucially, the government would need to get majority support for a timetabling motion in the House of Commons to expedite the process. That might not be forthcoming in a House where three quarters of MPs voted for Remain. (In 2012 Nick Clegg had to abandon his Lords Reform bill after the government lost the timetabling motion following a big Conservative rebellion).

In the House of Lords, the government has no majority, and no control over time. The Lords Constitution Committee and the Lords EU Committee will both want to scrutinise the bill and its implications. The Lords will not block or wreck the bill, but they will want to give it proper scrutiny; especially if they think the scrutiny in the Commons has been inadequate.

Can the bill be amended?

Government sources have suggested the bill will be ‘bombproof’. Parliamentary officials say that is a fantasy. All sorts of ingenious amendments can be tabled, on process as well as substance: requiring a white paper to be published setting out the government’s negotiating position; seeking a second referendum on the negotiated terms; requiring the government to acknowledge that Article 50 notification is revocable; etc. Debate risks exposing continuing splits within the Conservative party, because the referendum resolved nothing about what Brexit means: the battle continues, between Brexiteers who mostly support a hard Brexit and Remainers hoping for a soft Brexit. Legislation gives both sides multiple opportunities to table amendments or extract promises or impose conditions on the government during its passage.

What is the balance of forces in parliament, and within the Conservative party?

Few doubt that the government will get an Article 50 bill through; but it will not have an easy passage. Around 75 per cent of MPs supported Remain during the referendum; in the Lords the proportion of Remainers is probably even higher. The key constraint in the Commons is on the Conservative benches, with 185 Conservative MPs who voted for Remain, and 138 to Leave. The government has a working majority in the Commons of only 13. When voting on amendments, if all other parties vote against the government, it would only take a rebellion from a dozen or so Conservative MPs for the government to lose.

Rebels may be Brexiteers as well as Remainers. The main reason why they might rebel is the government’s insistence that it cannot disclose its negotiating hand, for fear of prejudicing the negotiations. The Prime Minister asserts that she does have a plan, which is to ‘get the best possible deal’; and David Davis has disclosed that the government’s strategy is to negotiate ‘the freest possible market in goods and services with the EU and the rest of the world’.

The government is reluctant to go beyond these platitudes because it has not yet decided what Brexit should mean. It will also be reluctant to exacerbate the continuing splits within the Conservative party. But legislation could force the government to disclose more of its negotiating hand. The preponderance of Whitehall advice (especially from the Treasury) will be to seek a soft form of Brexit, retaining access to the single market, or at the least remaining within the customs union. If that is revealed as the government’s strategy, strongly Eurosceptic MPs will then put down amendments seeking to steer the government towards hard Brexit.

Can Brexit be delayed, or even averted?

The expectation is still that the government will get its bill through. But the longer the delay before the triggering of Article 50, the greater the likelihood that the UK will not eventually leave the EU. This is still only a remote possibility. But the longer the delay, the more evidence will trickle out about the consequences of Brexit, and its impact on investment, jobs and prices. That may start to affect public support for Brexit. But at present there is little sign of any shift in public opinion: the polls continue to suggest that if the referendum were re-run, it would come to the same result.

What about the Great Repeal bill?

This is not the same as legislation to authorise the government to trigger Article 50. At the Conservative party conference in early October, Theresa May announced that in the next session of parliament, in 2017-18, the government would introduce a Great Repeal bill to repeal the European Communities Act 1972. That bill is necessary to ensure that EU law no longer has effect in the UK. It would take effect on the day that the UK leaves the EU: on the government’s proposed timetable, in 2019. Legislation to trigger Article 50 would be on a much faster timetable, early in 2017, and with a different purpose: it would initiate the UK’s departure from the EU, while the Great Repeal bill would conclude and give effect to it.

Will there be a second election?

Theresa May ruled out any need for a personal mandate when she became Prime Minister in July. She might need a new mandate if her government or party remains divided about what Brexit means. But she cannot simply call a snap election: the Fixed Term Parliaments Act 2011 abolished the prerogative power of dissolution. Under the Act, it would require two thirds of all MPs to vote for dissolution, or for the government to be defeated on a formal no confidence motion. The first of these is a very high threshold, unreachable without cross-party support. But it might be difficult for Labour to oppose, given their calls for an early election, and the added attraction that it would avert the current boundary review in which many MPs risk losing their seats. The second route, defeat on a confidence motion, might be followed if Theresa May called a confidence motion to rally support for voting to trigger Article 50, and lost; or if she engineered defeat on such a motion. A third route, if Theresa May wants to remove the obstacle to an early election, would be to introduce legislation to repeal or amend the Fixed Term Parliaments Act – but that would not be quick, as it would need to complete its passage through both chambers.

A second election would not necessarily resolve what form Brexit should take. It would require the Conservatives to present a united front; or if they are disunited, for sufficient Conservatives loyal to the government’s negotiating line to win, to make it clear which view should prevail.

Will there be a second referendum?

The Liberal Democrat leader Tim Farron has said his party will only support legislation authorising the government to trigger Article 50 if the government promises a second referendum on the terms of Brexit once the negotiations are concluded. Although a strong democratic case can be made for a second referendum, given the momentous consequences, it is most unlikely to happen. The two year timetable for the Article 50 negotiations is already extremely tight. The EU27 are pressing the UK to get on with it, and may be reluctant to extend the two year deadline. A second referendum would require separate legislation, which would delay matters further. If one was held, it would need to be clear what the alternative was: if people vote No to the negotiated terms of Brexit, is that a vote to remain in the EU; to seek better terms; or to leave the EU with no deal?

About the authors

Robert Hazell is Professor of Government and the Constitution at the Constitution Unit.

Harmish Mehta is a Research Volunteer at the Constitution Unit. He holds an LLB in Law from the London School of Economics.

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