Article 50 in the Supreme Court: what we should do next?

It is just over a week since the Supreme Court Article 50 hearings finished and all the excitement that went with it. For those of you who were fighting a by-election, the case was not a rerun of the High Court hearings as interventions were heard from all parts of the United Kingdom. The decision could have fundamental ramifications on the relationship between Westminster and the devolved administrations on top of the decision on Article 50 and the extent of the Royal Prerogative.

No one can realistically predict the result and I, as a non-lawyer, will not even try. But we must decide how we should respond to it. I list some of the possible outcomes below. How we challenge the government will vary dramatically in each case and needs careful thinking through now before the Supreme Court announces its decision before the government moves quickly to meet its March 2017 deadline if we are to respond quickly.

  1. The UK Government wins and no legislation is needed to trigger Article 50, i.e. a reversal of the High Court decision.
  2. A very short bill to trigger Article 50 has to go through parliament, drafted so as to reduce the chances of amendment (and probably already prepared).
  3. Substantive legislation is required to trigger Article 50 modifying existing legislation – this could more easily be amended to bind the government’s negotiating mandate.
  4. On top of either 2 or 3, the government is also required to consult the devolved assemblies (the Sewel Convention) to agree legislative consequences on the devolved administrations. How should we respond if no agreement is forthcoming?

We must be clear not only what we want to achieve but also how we intend to do it. Which of our objectives are most important, including free movement, protecting acquired rights, associated EU citizenship or the loss of economic growth? How much should we attempt to bind the negotiating mandate of the UK government? When should we build parliamentary coalitions to defeat the government and when should we stick uncompromisingly to our principles?

It suited all parties to agree that Article 50 was irrevocable but this may not be correct. I will address this in my next post. Should we try anyway to insert a requirement for a post-agreement referendum or parliamentary ratification? Should the government be mandated to require us to remain a member of the single market (from which Article 50 notification may not automatically withdraw us), the Customs Union or to negotiate some other arrangement? Should it include a clause allowing us to rejoin the EU?

What are the consequences both in the UK and in the EU of delaying the triggering of Article 50? Do the consequences of any delay outweigh the likely outcome we might achieve?

The answers to all these questions will vary depending on the details of the Supreme Court decision. But the more prepared and united we are, the stronger our position. The fight to challenge the government and amend any legislation may be as important as the results.

* Richard Robinson was the PPC in East Hampshire in May 2015 and currently divides his time between there and Vienna.

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10 Comments

  • Respect the democratic vote on 23rd of June ?

  • I do actually think there may be a reference of sorts to the ECJ in terms of the meaning (revocability?) of Article 50. Both the UK and EU sides have been remarkably coy about this, but it strikes me that where legislation / directive is not crystal clear, then the relevant judiciary should / may be asked to consider the question.

    I agree with Carl Gardner as far as the fact that no reference will be made to option 3, but also I suspect none to option 1 either – the form of Parliamentary bill would be left for the legislature to contest, and as Labour have said they will allow a “short bill” to pass, there seems at present little likelihood of it being any more substantial. But I sense MPs are modifying their positions as they are coming to grips with the complexity of the issues. This will be highlighted by David Davis and his “plan”.

    Together with the devolution twist, I still think it unlikely that any triggering will occur in the early spring of 2017.

  • I’m with John, the government should be in no doubt that they should respect the democratic vote and the basis on which people voted.

    The people were told they would get total control of EU migration with unfettered access to the EU’s internal market, ability of the UK to do its own trade deal and be able to spend an extra £350m a week on the NHS after replacing funding for regions, agriculture and science. Whatever the outcome of the case the government should commit to that, with a referendum on the terms so they can’t backslide on them.

  • I agree with Carl, the outcome will be option (1) or (2), if (1) then Parliament needs to be prepared to act swiftly and enact statute law to immediately limit any potential misuse of the new interpretation of the Crown Prerogative extension by any future Government who have a different idea of what ‘sovereignty’ means under the UK Parliamentary system of democracy – and thus fully “respects the referendum result”, unless those who “wanted our sovereignty back” actually wanted to reinstall a monarch/dictator…

    What is interesting is option (4). I think Richard has artifically limited this. I suggest the need or not to consult the devolved assemblies is wholly independent of the need for Parliamentary consent. Thus, given the current EU membership mess is wholly down to Westminster, it would not surprise me if the verdict was the Government could trigger Art.50 without Parliamentary consent but does need to consult the devolved assemblies…

  • David Pearce 19th Dec '16 - 8:25am

    This stuff about ‘respecting the vote’ is pure propaganda whereby parties (plural) are dressing up a desire not to respect the vote by claiming they are pushing it forward. It is far more honest to say many people disagre with the result, and are using their democratic right to campaign for a reversal. It is never undemocratic to campaign for what you believe in.

    The more people are using this argument about a settled result, in reality the more they believe the matter is not settled at all. Otherwise no need to go on about it. Parties exist to put their view across, and 48% voting to remain is massive in normal electoral terms. A lot more than the government got as its mandate.

    I looked at some of the case reporting, and although the lawyers did not make much of it, there is a real question of how much of a veto Scotland or ireland might have over a decision by westminster to leave the EU. This isnt about the ‘sewell convention’, but about what exactly was transferred into law (rather than just talked about in parliament). Much of the entire case turns on whether the referendum act granted implied consent for notice to be given, which is pretty similar to whether Sewell is simply a ‘gentleman’s agreemen’t between politicians, with no legal force. It seems likely their lordships will decide the only thing which counts is what the law says about Scotland, Ireland being consulted, whether they have a legal right for this process to be completed, whether the government has a right to ignore the conclusions obtained if they are adverse.

    The result of the case will therefore determine whther a one line bill will suffice, whether the government needs other legislation to repeal Scottish or irish rights, or must go through with consultation first, or whether in the extreme case Scotland or Ireland has an absolute veto. You did not mention this as a possibility, but it is one.

  • David Pearce 19th Dec '16 - 8:42am

    The government had to have this case before trying to give article 50 notice, because the altrnative was to have it after giving notice and risk that notice being declared invalid, which it seems the high court would have done. No doubt if matters proceed we will also have to have the referral to the european court on reversibility of article 50, and many would argue this also needs to be done before giving notice.

    However, the government does not appear to be proceeding with any will to carry out Brexit. Timetable wise, Hard Brexit could have been forced through parliament by now with the Uk out of the EU by this christmas. So long as we did not care about the economic consequences. So long as the government does not believe there is a real constitutional veto possible by Scotland or Ireland.

    Increasingly I am of the view that the government does not believe brexit can work. It is stalling, because it has no workable plan. The only viable alternative for the Uk economy is a very soft Brexit, but this faces the hurdles of immigration, EU payments, following EU laws, so that Leave are correct to argue, while it technically satisfies the referendum result, it does not really amount to leaving.

    However, the government also clearly believes that there is a chance hard Brexit would be truly catastrophic for the Uk economy, in a way voters could never fail to miss and which would result in a clear decision to remain. The government is therefore paralysed between two impossible choices, with its only option being to delay and hope for the best. The court case has been great for this so far.

  • re: the reversibility of article 50

    I’ve yet to see anyone put forward an argument, based on the various treaties etc., that shows that the UK can unilaterally revoke it’s invocation of Article 50, that is binding on the other signatories. From what I can see any revocation relies on getting the consent of the majority of the other signatories and thus taking the matter out of the hands of the UK. So it didn’t just suit both parties to agree that Article 50 was irrevocable, they were simply agreeing on reality, namely the extent to which a UK government were able to exercise sovereign powers.

  • David Pearce 20th Dec '16 - 7:46am

    Ironically, parliament is sovereign, at least if they can get the queen to consent as well. So they can do anything. Whether they ought to have more sense is another matter.

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