Brexit and the UK Supreme Court

It was predicted, it was warned against, and it happened: Prime Minister Theresa May’s government cannot commence the official process for leaving the European Union without parliamentary approval.

In upholding the decision of the lower court Parliament, deemed the sovereign voice of the UK, was again affirmed as ultimate arbiter, the historical figure of force that cannot be bypassed.  This flies well and truly in the face of the semi-authoritarian May, who has used Brexit as alibi and deflector in asserting the state’s famed prerogative powers.

The Crown, it was argued again, had prerogative power to enter into and withdraw from treaties. This could be exercised in relation to the EU Treaties. To that end, there would be no need for Parliament (in other words, an act of parliament), merely the serving of a Notice that the EU Treaties would cease to apply.  That, at least, was the gist of what was put before the Supreme Court.

By a majority of 8 to 3, the Supreme Court dismissed the Secretary of State’s appeal. The sheer impact of withdrawal from the European compact was no minor affair, being a legal revolution of some proportion and consequence: “Withdrawal makes a fundamental change to the UK’s constitutional arrangements, by cutting off the source of EU law.”

The sting in the tail of the majority judgment lay in the removal, effectively, of certain domestic rights guaranteed by EU laws. For that very reason, it was “impermissible” that the Government take such a step without Parliamentary sanction.  Nowhere could the judges detect Parliamentary approval for ministerial intention to withdraw from the treaty arrangements without an Act.

Sovereignty remains a complex, variegated concept.  For one, it is not necessarily the Siamese twin of populism.  In the British system, the upper house, the UK’s great political retirement home, remains unelected.  The system of governance also operates under the sacred, and mystifying notion, of the unwritten constitution.

The judges may well have seen Parliamentary supremacy as all encompassing, but they also denied the Scottish, Welsh and Northern Irish legislatures a veto in the matter.  They were not deemed sovereign enough in the UK compact.

On Northern Ireland, the court’s words were instructive and dismissive:

In our view this important provision which arose out of the Belfast Agreement gave the people of Northern Ireland the right to determine whether to remain part of the UK or to become part of a united Ireland.  It neither regulated any other change in the constitutional status of Northern Ireland nor required the consent of a majority of the people of Northern Ireland to the withdrawal of the UK from the EU.

From the perspective of Northern Ireland, whose stability is assured by the 1998 Good Friday Agreement, the European Union was both stabilising boon and reassuring necessity.  A departure from it was a constitutional affront, and one requiring the consent of Stormont’s politicians.  The basis of victims’ campaigner Raymond McCord’s appeal was precisely that Brexit challenged the very constitutionality of that agreement, thereby threatening Northern Irish sovereignty.

“Brexit,” suggested Sinn Fein leader, Gerry Adams, “will undermine the institutional, constitutional and legal integrity of the Good Friday Agreement.”  Such matters as “stability and economic progress are regarded as collateral damage.”

“It’s becoming clearer by the day,” claimed Scotland’s First Minister, Nicola Sturgeon, “that Scotland’s voice is simply not being heard or listened to within the UK.”  Historical inequality has been reaffirmed: some voices are deemed more sovereign than others.

Whatever noise and delay triggered by the legal process, one confused and unnecessary, the May government insists that it will go through the motions in getting legislation through.  Wording will have to be taut and definitive.  “There’s no going back,” explained David Davis, May’s Brexit minister.  “The point of no return was June 23.”

Labour’s Jeremy Corbyn has also promised to ensure the process of Brexit will take place without any obstacles from his party in Parliament.  “Labour respects the result of the referendum and the will of the British people and will not frustrate the process for invoking Article 50.”  He did have one large caveat: Labour would amend any Article 50 Bill “to prevent the Conservatives using Brexit to turn Britain into a bargain basement tax haven off the coast of Europe.”

None of this sheds any light about how May’s team will approach the process.  So far, words are doing the running, with reality lagging behind.  “If one wants a divorce but to remain friends on the basis of a new relationship,” ventured European Commission spokesman Margaritis Schinas, “first one needs to agree on the terms of the orderly separation.”

Schinas, channelling the language of family law, posed that such a separation required the adherence of both parties to their obligations. But the mechanics of how those obligations will be abided by continue to remain murky, and no doubt will remain so for some months to come.  It will be up to Parliament to dispel some of it.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: Read other articles by Binoy.