I have long suspected that an act of Parliament would be necessary to formally trigger Article 50. In an 8-3 verdict today, the UK Supreme Court affirmed this suspicion. Theresa May cannot invoke royal prerogative for the simple reason that leaving the EU is an act that has a tremendous impact on laws governing the UK. And the Supreme Court says these vast changes in UK law require an act of Parliament to decide. At the same time, the Court ruled that Wales, Scotland and Northern Ireland have no devolved powers here, They cannot veto the UK’s exit from the EU.
Here’s how I laid out the situation back in June, exactly a week after the Brexit referendum, in an article on “Why Britain might not leave the EU and the next Prime Minister could be female”:
“Theresa May is telling us even ‘Remain’ Prime Ministers will lobby to get Britain out because that would be following the will of the people. This does not mean the UK parliament will vote out. It means that the next Prime Minister will put forward a vote to invoke Article 50 and individual MPs will have to vote their conscience and suffer the consequences. So it is still possible that Article 50 does NOT get invoked – and we will then have to see if this occurs whether general elections get moved forward.”
Two things here: First, it was clear from the start that Theresa May had a better chance of being able to lead Britain after the referendum for the simple fact that she campaigned to ‘Remain’ and therefore evoked some trust from Remainers. But she also evoked trust from Leavers because she said from the start that, “the country voted to leave the European Union, and it is the duty of the government and of parliament to make sure we do just that.”
Second, the concept that her government could take the UK out of the European Union with no formal input from either the UK parliament or the devolved governments is one that could have led to the UK’s dissolution. The concept that you can “take back control” from the EU by royal prerogative, bypassing any formal parliamentary intervention was a reckless one right from the start.
Now Theresa May was willing to cede Parliament a vote on Brexit after the negotiations were basically done and exit was imminent. But as I argued here a week ago, “the concept that the UK government would negotiate for two years and present a deal to Parliament for vote under the pressure of imminent departure from the EU doesn’t make sense for MPs who voted remain. They will say that this leaves them with effectively no say whatsoever. They will fight to have greater say much earlier in the process.”
Prime Economics Co-Director Jeremy Smith said it even better in my Q&A last week:
This is a meaningless gesture, since we now learn that even if Parliament votes down the negotiated package (if there is one) the government would still aim to proceed to leave. Back in late June, just after the Referendum, we suggested that Parliament should have a vote on the proposed terms – and that if Parliament thought it was a bad deal for the U.K., there should be a second Referendum. But that is now clearly not on offer (and Labour is not demanding it). Parliament has in effect rather abjectly abdicated to the government over the terms of leaving the EU.
Remember too that in a few days, the U.K. Supreme Court rules on an appeal in a case where the High Court had decided that the government had to get Parliament’s agreement to give the notification (under Article 50 of the Treaty on European Union) to leave the EU. This was brought not by Parliamentarians worried about their constitutional rights, but by private citizens who believe that we live (and should live) in a Parliamentary democracy, not an authoritarian regime in which all power lies with the executive. Right after the Referendum, we in PRIME argued (“A democratic strategy for the EU negotiations”) that Parliament should take the lead, and if truly unhappy with the outcome, be prepared to require a second Referendum. But the House of Commons has been more the Mouse of Commons. This could have an impact
Moreover, just as likely as a deal is a failure to agree a deal (note that the European Parliament’s consent is required to a deal, and they are not going to be “easy” partners) and that would leave Parliament with nothing to agree… with the U.K. drifting out of the EU in March 2019.
The UK Supreme Court has brought us back to reality. Now MPs will have to vote their conscience and face the ballot box having done so. Whether this changes Theresa May’s timetable, we will soon find out. I will also be interested to hear Nicola Sturgeon’s reaction to the fact that the UK Supreme Court ruled unanimously that Scotland has no say here.