The implications of the High Court ruling

Yesterday’s High Court ruling is the biggest event since the Referendum, and opens up a huge and complicated set of issues and possibilities. In brief, the ruling is that it would not be constitutional for the government to invoke Article 50 without the consent of parliament*, a ruling consistent with centuries of precedent within Britain’s ‘unwritten constitution’. In principle this means that parliament could refuse to give its consent – and the majority of MPs wanted to remain in the EU – but in practice this is highly unlikely given the Referendum result. Remainer MPs in constituencies which voted leave will be wary of defying their electors; although the same could be true of Brexiter MPs in constituencies that voted leave (the Richmond by-election may show this). And with the latest opinion poll showing a narrow preference to stay in the EU, perhaps sentiment is shifting amongst the electorate anyway.

However what it is more likely to mean that MPs have a chance to shape what form Brexit will take, with questions of hard or soft Brexit being at the fore. That will cut both ways, in that hard Brexiters will have the opportunity to seek to bind the government to the very hardest form of Brexit (e.g. no attempts at even sectoral access to the single market, exit from the customs union) quite as much as Remainers and soft Brexiters will have the opportunity to seek to ensure single market membership or even – most obviously from SNP MPs – to seek to remain in the EU. It will become crucial for Labour to develop a coherent position, which they have so far failed to do. And, whatever happens in the Commons, the House of Lords, which has an anti-Brexit majority, will also be in a position to influence Brexit.

Of course there are other possibilities, too. The government’s appeal to the Supreme Court may result in the High Court’s ruling being overturned. Then we are back to the status quo ante, although in a fast moving situation there may be no such thing as that. Or (perhaps especially if the appeal fails) there may be a General Election, the results of which will be very unpredictable. The Conservatives would have to spell out what Brexit meant, if they were to seek a mandate through the election for that stance, and that would expose the significant rifts within the party. UKIP might become a significant force (and what’s the betting that Nigel Farage decides, yet again, to stay on as its leader?). And the LibDems might be able to capitalise on the remainer vote to gain what could be a decisive influence in the parliament that would follow. At all events, it seems increasingly unlikely that the government will be able to continue to try to define what Brexit means without telling the public what they have in mind.

The reaction of Brexiters to the ruling has been truly hysterical, with it being described as ‘betrayal’, the ‘death of democracy’ and “an attempted coup”, and the person who brought the action has been subjected to death and rape threats. The Daily Mail, quite disgustingly even by its standards, described the High Court judges as “enemies of the people”. It is deeply unattractive, to say the least, and shows how even in victory the Brexiters glory in a victim mentality. But it is also ironic, since the cornerstone of the Leave campaign was to restore ‘sovereignty’ to the British parliament and judiciary. So it is extraordinary that the proposition that parliament should make decisions is seen as an affront to democracy; and dangerous populism to posit that 52% of those who voted – thus, 37% of the electorate – as ‘the will of the people’ and exempt from the rule of law or the workings of the constitution.

But of course what all this anger really derives from is the complete failure of those who want to leave the EU to specify either what they want as an alternative or to plan the process for exit. On the former, the refusal, in particular, to agree on whether voting leave meant voting to leave the single market or not is what has opened up the whole soft versus hard Brexit debate. On the latter, both the Leave campaign and May’s government have shown themselves to have no grasp at all of either constitutional law or political realities by trying to arrogate to themselves decisions about what form Brexit will take.

As I observed in my October 13 post:

The UK is an old and complex democracy, whereas referenda are unsubtle and, within the UK, very recent political instruments. Whilst Brexiters want to claim that the narrow vote of June 23 is some unanswerable and inviolable democratic truth, they may be about to find that – as with so much else that they believe – reality is not so straightforward.

That seems to be coming true. It is very far from clear where the High Court ruling will take us. What is clear is that it has thrown numerous chips up into the air. Where they will land is impossible to predict. Political and legal chaos can be added to the growing price tag of the Referendum vote.

*The full ruling is long and very technical, but the core issues as I (a non-lawyer) understand them are as follows: leaving the EU would entail the repeal of the 1972 European Communities Act, a matter which would affect UK law and can therefore only be decided by Parliament, not by ‘Royal Prerogative’ (i.e. executive action on behalf of the Crown). The invocation of Lisbon Article 50 requires that it be triggered in line with the constitutional requirements of the member state, and once invoked it cannot be rescinded. Therefore, to invoke the A50 constitutionally requires the assent of Parliament because its inevitable consequence would be the repeal of the 1972 Act.