Why the British High Court decision will not derail Brexit

The British High Court’s ruling that the British government must consult the British Parliament before invoking Article 50 and triggering the Brexit process has convulsed the political scene in Britain with much lurid talk of a constitutional crisis.

The fear – or in the case of some people, the hope – appears to be that because most British MPs are known to have supported Remain, they will somehow use the opportunity of a parliamentary debate to derail the whole Brexit process.

I don’t share this view.  Though the legal and constitutional importance of the High Court’s Judgment cannot be overstated – and will be discussed by legal scholars for generations – I doubt that it will have the political consequences that some people think it will.

Adam Garrie for The Duran has carefully and thoroughly explained the background of the case and how it revolves around how the government was planning to use the Royal Prerogative – ie. its executive powers – to invoke the Article 50 process without consulting Parliament.

Briefly, the government intended to use the Royal Prerogative to invoke the Article 50 process.  Once it had negotiated Britain’s Brexit terms with the other EU states and the EU bureaucracy in Brussels, it then proposed to go to Parliament with legislation to repeal the European Communities Act 1972, which makes British law subordinate to EU law.

The High Court says that this is wrong, since by doing so the government is trying to tie Parliament’s hands, since the result of the negotiation process launched by Article 50 is inevitably a legally binding agreement with the EU for Brexit, which Parliament would not be able change to any important degree even if it wanted to. 

The High Court says that tying Parliament’s hands in this way is unconstitutional, since EU membership affects British citizens’ rights of which Parliament is the constitutional protector.  The High Court said that Parliament’s constitutional role to protect citizens’ rights cannot be ousted by the referendum – as the government sought to argue – since the referendum was purely consultative.

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.

If the Judgment is upheld, then it will form part of a long succession of Judgments extending all the way back to the Seventeenth Century which define Parliament’s powers and its position in the British constitution. 

It will also set an important precedent for how Article 50 should be invoked in future by any other EU state which is also considering leaving the EU.  This is important since Article 50 has never been invoked before, and there has been great uncertainty about how the process involved in invoking it works.

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.

In passing, I also doubt that this Judgment will persuade Theresa May to call an early election, even though there are many Conservatives who want her to capitalise on the Conservative lead in the opinion polls by doing so.  She has consistently ruled out calling such an election, knowing that there is no reason for the moment to call one and that doing so would require a vote in Parliament, and I see no reason why the High Court’s Judgment should change her mind about this.

In my opinion the true political importance of this affair is not in its supposed ability to wreck the Brexit process.  Rather it is in the way it has again smoked Theresa May out.

The reason the government tried to cut Parliament out and sought to invoke Article 50 via the Royal Prerogative was not because it was afraid it might lose in Parliament.  It is – as Adam Garrie has rightly pointed out – because the government still has no plan for Brexit. 

Presenting legislation to Parliament requires the government to spell out such a plan.  That means that the game of obfuscation and delay that Theresa May has been indulging in ever since she became Prime Minister, in which she has tried to conceal her absence of ideas about Brexit by hiding behind the Royal Prerogative, can no longer work.

This is a completely good thing since finally it should make it possible for Britain to have the proper discussion about the sort of Brexit it wants that it sorely needs. 

In summary, this Judgment may be awkward for the politicians, but in my opinion the High Court has done everyone else – including those who support Brexit – a favour.