Theresa May, Brexit and the Supreme Court

The decision of Britain’s Supreme Court to refuse the British government’s appeal against the High Court Judgment, which said that the British government must consult the British Parliament before invoking Article 50, appears to have stirred fewer passions than the High Court Judgment did.

This is perhaps because of the general expectation that the British government would lose the appeal.  This meant that where the High Court Judgment came as a shock for many people, the Supreme Court Judgment did not.

I have discussed the High Court Judgment previously.  I said that though I am not a constitutional lawyer it appeared to me reasonable and well-considered, and though I did not think it was completely appeal proof I doubted the Supreme Court would set it aside

In my opinion this is a very well thought out and carefully considered Judgment delivered by three of the country’s top Judges.  Certainly I do not think this was a politicised Judgment intended to wreck the Brexit process. 

I do not have the constitutional law expertise to say whether this Judgment is right or wrong, or whether it will survive on appeal.  On balance I don’t agree with those who say this Judgment is appeal proof, but neither do I think that the Supreme Court will set it aside.

The Supreme Court’s 8-3 split when it decided to dismiss the government appeal, which suggests that this assessment of the High Court Judgment was roughly right.

More importantly, I also said – and I still say – that whatever the legal and constitutional importance of these court decisions, they will not derail or even significantly slow down the Brexit process as some people hope and some others fear.

What I doubt is that this Judgment will derail the Brexit process as some people think.

Though the British government will have to present legislation to the British Parliament in order to get the Article 50 process underway, I have no doubt it will be able to do this and to get this legislation passed when it does. 

Though it is true that most of the members of the British Parliament in the referendum supported Remain, the government has a majority in the House of Commons, and it would surely treat any refusal by Parliament to pass this legislation as a resigning matter. 

What that would mean is that it would threaten to call an election if the legislation were not passed, in which it would campaign as the government that was trying to carry out the will of the people as expressed in the referendum against a recalcitrant Labour opposition and any dissenting Conservatives intent on thwarting it.

With the government already far ahead in the opinion polls, that would create the conditions for a government victory by a landslide, resulting in a government and a Parliament even more committed to the ‘hard’ Brexit outcome than the one we have now.

I cannot imagine that even the most doctrinaire Remain supporters, whether in Parliament or outside it, would be unable to see this, and for that reason I expect the government to get its way.  Probably on especially contentious issues the Labour opposition will abstain after some sort of compromise is forged.

Since I wrote that in November shortly after the High Court Judgment it appears to have become the consensus view.  In fact most commentators have come to acknowledge that High Court and Supreme Court Judgments cause more political problems for the opposition Labour Party – which is far more split on the Brexit issue than the Conservatives – than it does for the government.

A more pertinent question is why these court Judgments were needed at all.  It beggars belief that the government’s lawyers didn’t warn it back in the summer and early autumn that it was running serious risks by trying to invoke Article 50 without consulting Parliament.  This is one occasion when I find myself in agreement with the Guardian’s editorial writer

It would be a major surprise if, following the leave vote last June, government lawyers had not privately offered the prime minister legal advice along broadly the lines that the supreme court upheld today. If so, Mrs May foolishly ignored the advice because she clearly wanted to keep her post-referendum strategy as secret as possible – and still does. This was the wrong way to respond to the challenges posed by the referendum result – and the Commons, which was cowed, did not challenge her with enough determination.

Indeed this episode points to what is the true heart of the whole problem: in Theresa May Britain has a weak and indecisive Prime Minister, who because she does not know her own mind is unable to give a clear lead, whether on Brexit or on any other issue.

As I wrote back in early December, her reluctance to go to Parliament was not based on any major constitutional principle or because she was seriously worried she might lose a vote there.  It was because she had no Brexit plan to put to Parliament.  To the extent that she did have one, it did not make sense

Unfortunately in the weeks which have followed it has become increasingly clear that Theresa May has no more idea of what to do on the subject of Brexit than anyone else.  For weeks she hid behind the easy but actually meaningless slogan “Brexit means Brexit”.  However she has never spelled out either what form she wants Brexit to take, or how she intends to achieve it. 

The best that could be said of her is that she seemed to want to preserve Britain’s membership of the European Single Market, whilst opting out of the jurisdiction of the European Court of Justice, and regaining control of Britain’s borders.

This is a completely illogical policy.  Firstly membership of the European Single Market actually requires Britain to accept the jurisdiction of the European Court of Justice.  It cannot be otherwise since it is the European Court of Justice which administers the acquis, the EU’s body of law which regulates the European Single Market.

Secondly, it is not at all obvious why the EU would agree to allow Britain continued access to the European Single Market whilst simultaneously permitting Britain to reimpose its own border controls.

What the High Court and Supreme Court Judgments have done is force Theresa May to come out and say – at last – what sort of Brexit she wants.  

Since it cannot be the ‘plan’ she was hinting at back in the autumn – which was in reality nothing more than an ill-thought-out wish-list – she has finally been forced to choose between the only two realistic options: remaining in the European Single Market and surrendering British border controls (“soft Brexit”), or withdrawing from the the European Single Market and re-establishing British border controls (“hard Brexit”).  

Unsurprisingly, in light of the known views of most British Conservative voters, she has taken the line of least resistance, and opted for the later ie. for “hard Brexit”.  

She has also now finally promised a White Paper on her Brexit plan (a White Paper is the document the British government uses to outline its legislative plans), something which she ought to have done at the latest in September or October.

If the British courts have finally smoked Theresa May out on the all-important Brexit issue, the problem remains that Britain is stuck with a weak and indecisive Prime Minister, who does not know her own mind, which at a time when the international situation is exceptionally fluid and the prospect of Scottish secession looms is or should be a matter of serious concern.

Theresa May has been very fortunate that the deeply divided state of Britain’s opposition Labour Party – which is facing an existential crisis in its northern heartlands – together with the British economy’s strong performance in recent months, has left her politically unchallenged.

On her present form, her future as Prime Minister depends on how long her present luck continues to hold.