January 24, 2017

The Gina Miller Case and Its Impacts on Brexit

What does the Supreme Court decision mean for me?

That all depends. For constitutional law academics it’s Christmas all over again. And if you’re the sort of person who takes a sentient interest in the ability of our courts to control a rampant Executive – someone like David Davis MP used to be, at least until he became a member of that Executive – there’s much to interest you too.

But if your interest is its impact on Brexit? What does it mean for you?

Let’s remind ourselves of what the Supreme Court decided.

There were two contentions before it.

The first was that Parliament had given us rights as EU citizens; that triggering Article 50 would, without more, lead to the removal of those rights; and that what Parliament had given to us the Government could not take away. So an Act of Parliament was needed to initiate the process that would lead to the removal of those rights.

The second concerned the role of the devolved Parliament and Assemblies. Triggering Article 50 would alter the constitutional settlement between the United Kingdom on the one hand, and Scotland, Northern Ireland and Wales, on the other. And, or so the argument ran, it is a feature of our constitution that the settlement would not be altered without consent.

The Supreme Court agreed (by a majority of 8-3) with the first contention. An Act of Parliament would be needed to remove those rights. And the form of that Act of Parliament was for Parliament. I address what this means in practice below.

As to the second, the Supreme Court said that it was not for it to police what lawyers refer to as constitutional “conventions” – you might think of these as general understandings as to the way in which things should be done – and so they were unable to declare that the devolved Parliament and Assemblies had a right to be consulted. The ‘control’ over whether the Government adhered to these conventions was a political control (i.e. for the Government) rather than a legal control (i.e. for the Supreme Court).

So a victory for Ms Miller. But what does it mean for Brexit?

The answer is, ‘not much.’

When, on 29 June 2016, I crowdfunded the money for the first public step in this litigation, I anticipated that Parliament would see a role for itself.

The Referendum result itself gave no mandate for the shape of our future relationship with the EU. And a Commons that abjures responsibility for that shape is derelict. There was no small print on the ballot paper saying what Brexit means. Filling in the detail of that momentous decision is absolutely a matter for Parliament.

But I had not anticipated how completely absent from sensible debate the Labour Party would be. And Parliament without Opposition is hollow ceremony.

It is tolerably clear – and I think understandable – that few Parliamentarians are inclined to ignore the result of the Referendum. It must mean, if it means anything, that we begin the process of leaving the EU. An enormous error though I believe that course to be, I accept that it is what the people chose. If MPs see things this way we should be sympathetic.

Shaping Brexit – adding the small print to that ballot paper – is a task for MPs. But there is little evidence that they will coalesce around any attempt to dictate the objectives of our negotiations, or even to alter the process. And, unless the Commons takes a stand, it is hard to see how the House of Lords might justify to itself intervening.

So what are we left with?

Theresa May should hit her timetable. Article 50 will be triggered in March. And then we watch and wait as the evidence of what Brexit really means starts to come in.

Attention will turn to the question whether, having sent in our Article 50 notification, we can withdraw it if we wish. I have already started legal proceedings in relation to that question, and you can read about those proceedings (which I have styled the ‘Dublin case’) here.

Those proceedings raise a legal question: having triggered Article 50, is the door to Remaining locked or unlocked? But there is a political question too: if that door is unlocked do we wish to walk through it? The legal question, being one of European law, is for the Court of Justice to answer. But the political question is, and rightly, for Parliament and the electorate to answer in light of the evidence as to what Brexit really means.

And that is as it should be.


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