The Hollow Order
Rebuilding an International System That Works
Last Thursday, the High Court of Justice of England and Wales dropped a bomb when it ruled that Prime Minister Theresa May has no authority to trigger Article 50—the provision that would begin the formal negotiations with the EU over Brexit—without prior parliamentary consent. Soon after, May’s government confirmed that it would appeal the decision. Nevertheless, some Brexiteers began fretting that the United Kingdom’s departure from the EU could be derailed, since many parliamentarians oppose Brexit.
But the true significance of the shocking decision is that it clips the government’s wings by determining rules of the process that May and her ministers will have to follow as they attempt to implement the results of the June Brexit vote. In doing so, the court has not fundamentally changed the likelihood of EU exit, but it has upped the chances that Article 50 will not be triggered until after the March deadline that the prime minister had previously set. It has also raised the possibility of a snap general election in the first half of 2017, some three years before the next scheduled ballot.
THE BREXIT BALANCING ACT
May’s government had previously seemed intent on steamrolling Article 50 (and any eventual Brexit deal with the EU) in a way that could further polarize the nation. If anything, the high court ruling is a welcome reminder that May should try to seek a national consensus around the terms of the United Kingdom’s separation from Europe. With the electorate still divided over the referendum decision, it is unfortunate that the government did not come to this conclusion itself.
It is very likely that the United Kingdom’s exit strategy will benefit from greater parliamentary involvement. Increased oversight is not about blocking the EU exit process, as the opposition Labour Party confirmed on November 6; rather, the parliament will help address the stark reality that no mandate for any specific form of exit (hard or soft, orderly or disorderly) resulted from June’s 52-48 percent referendum, which was a vote for departure but not a destination.
Here, parliament will help try to ensure an exit from the EU that maintains high living standards and prosperity while, at the same time, it delivers on the political need for stronger controls over immigration. This balancing act, which will be very difficult to strike given the EU’s commitment to the free movement of goods, people, capital, and services over borders, remains at the heart of the dilemmas May faces. Parliament can potentially assist her not only in weighing up the trade-offs on the horizon but in securing greater political legitimacy for any eventual deal that emerges.
May has resisted stronger parliamentary involvement in the Brexit process for the potential headaches it would bring.
First, the court decision increases the prospects of a significant delay in triggering Article 50. This is because an act of parliament will likely have to be brought before the House of Commons and House of Lords, which, because the bill cannot be classed as “emergency legislation” whose passage can be done very quickly, could require several months. A significant delay in the prime minister’s timetable is problematic for the government, which wants to get any final Brexit deal negotiated in 2019, in advance of the scheduled May 2020 election.
The press has given much attention to the political dynamics in the House of Commons, since that chamber remains the center of political gravity in the country, but May’s challenges could be even more significant with the pro-EU peers in the House of Lords, who are less susceptible to public opinion given that they hold unelected positions. Many in the House of Lords have noted their concern about Brexit, and several have warned that the March deadline to trigger Article 50 may now be impossible to be meet.
Second, unless the Supreme Court overturns the high court decision in the coming weeks (which although uncertain, appears unlikely), there is now also a greater chance of the United Kingdom opting for a softer Brexit. In the House of Commons, Labour may head the charge, with its leader, Jeremy Corbyn, announcing what he called “Brexit bottom-lines” over the weekend. These include ensuring British access to the Single Market; guaranteed protections for British consumer rights and the environment post-Brexit; no post-Brexit dilution of current EU workplace rights; and pledges that the British government will pick up the tab for any EU capital investment lost thanks to Brexit.
Last Thursday’s decision should energize a genuinely pan-union debate among legislators, with the Westminster Parliament at its heart.
Although Labour will be at the heart of these discussions, significant cross-party alliances on these issues are being forged in not just the House of Commons but also in the House of Lords. At the center of these talks appears to be ensuring an EU exit deal that includes a very close relationship with the European Single Market. That is potentially very problematic for May. She knows that parliament could, in effect, tie her hands in negotiations with EU partners if it requires her to make continued Single Market membership a top priority. (Key European leaders have repeatedly said that such continued membership is dependent on freedom of movement for EU nationals in the United Kingdom, yet May reasserted after the court ruling that she wants to introduce greater migration controls.)
Third, the court decision also raises the prospect of a public referendum to approve any post-Brexit agreement with the EU that emerges in 2019 or beyond. Some legislators already appear to have made such a vote an explicit goal. Among them is former Deputy Prime Minister Nick Clegg, who has said that there should now “be some means by which the British people can have a say on the final deal when the negotiations with the EU are finally completed in the years ahead.”
This could cause further problems for May; some opinion polls now show that a majority once more supports membership in the EU. If any such second referendum were to reject the terms of an exit deal with the EU in 2019 or afterward, it may be a fatal political blow for May who has, since she became prime minister in July, staked her credibility on delivering Brexit despite the fact that she campaigned for Remain prior to the referendum.
Given such a tricky political context, May could well decide to engineer a snap election in the first half of 2017. She had previously ruled out such a vote, but it is not impossible that she could change her mind unless the Supreme Court overturns last Thursday’s judicial ruling. The temptations could prove particularly irresistible if polls in coming weeks continue to show a healthy double-digit lead for her ruling Conservative Party over Labour. Elections are never without risk, of course, but May would be strengthened by a mandate for her Brexit negotiating strategy, whether it ultimately proves to be for a harder or softer exit. It would also be useful for her to boost her current slim majority in the House of Commons.
The opposition of many Brexiteers, including the United Kingdom Independence Party’s outgoing leader Nigel Farage, to greater parliamentary oversight for Brexit is not just self-interested but also contradictory to their core political platforms. That is, Farage fought to leave the EU on the basis of the United Kingdom’s parliamentary sovereignty, yet he now vehemently opposes Westminster legislators having a proper say in the negotiation process.
Some other Brexiteers, including Dominic Cummings, who was a key architect of the Leave campaign, have rightly accepted the high court ruling and accused some of his erstwhile allies, including Farage, of “babbling nonsense.” After all, the judicial decision merely supports the long-standing British tradition that laws or statutes the Parliament passes to confer rights cannot be removed without the legislature voting to do so.
At a time when the national interest should be key, Farage—like some fellow Brexiteers—appears blinded by a desire to get a fast departure, even if that means what he has described as the “worst case scenario,” that the United Kingdom must resort back to WTO trading rules. And this recklessness also threatens the very future of the union between England, Scotland, Wales, and Northern Ireland given the warnings that the complexity of the EU exit discussions will test the United Kingdom’s existing constitutional and legal frameworks to their limits, and potentially beyond.
Already, Scottish First Minister Nicola Sturgeon has started to set the groundwork for a second independence referendum in that country. To be sure, Sturgeon has her own partisan, nationalist motives, but Scotland (and Wales and Northern Ireland) have many legitimate economic and political interests that need to be properly considered in the United Kingdom’s overall Brexit planning.
Last Thursday’s decision should energize a genuinely pan-union debate among legislators, with the Westminster Parliament at its heart. It was not a “betrayal,” as Farage argues, but a way that can hopefully encourage the building of a successful, tolerant and unified post-EU nation—something he and other Brexiteers should welcome.