November 11, 2016
Will Brexit ever happen? Ever since Britain voted in June to leave the European Union, the government has been in turmoil, uncertain how to proceed. Angry disputes have erupted between those who want a total break with Europe and those who want to retain trade and other links. Now, in a devastating judgement from Britain’s High Court, the Prime Minister has been told that she cannot begin the process of leaving the EU without consulting Parliament. And Parliament could easily veto all her plans.
Theresa May and a growing number of impatient Brexiteers want to trigger the negotiations to leave as soon as possible. She has promised that in March she will invoke Article 50 of the Lisbon treaty – the article that gives any state wanting to quit the EU two years to reach agreement with its partners on the new relationship. But she insisted that she would not seek parliamentary approval first, arguing that outlining the details of the deal she was seeking would reduce Britain’s bargaining power with the rest of the EU.
Many members of Parliament were furious. The overwhelming majority voted in the referendum to remain in the EU. Many now want a say in the talks to ensure that Britain gets the best trade deal possible with its partners and to stop the Brexit zealots from breaking all ties with the EU. But no one expected a private legal challenge to the government from a member of the public. So when Gina Miller, an investment manager born in Guyana, succeeded in winning a unanimous judgement from the High Court that cutting Parliament out of the decision was unconstitutional, the result came as a bombshell.
Surprise High Court judgement
Some diehard Remainers are delighted. They now see a chance to scupper all the negotiations by refusing to vote for any law authorising the government to invoke article 50. Together with the Scottish Nationalists, who unanimously oppose Brexit, some pro-European Conservatives and many pro-European Labour and Liberal Democrat Members of Parliament believe they can either force a second referendum on the terms of any deal, or cause such obstruction that talks on leaving cannot even begin.
The Brexiteers are aghast and furious with the three judges issuing the verdict. They have accused them of trying to thwart the result of the referendum, defying the popular will, behaving like unelected dictators and being in cahoots with the Remain camp. An outpouring of personal abuse of the judges on social media, and a barrage of insults from hardline Leave campaigners has now reached such a level that Mrs. May has been told to step in to stop the attacks. They are bringing the law and the courts into disrepute, she has been warned, and are in danger of undermining the cherished independence of Britain’s judiciary.
But the judgement has done serious damage to the government’s negotiating position. Nobody yet knows what it is. Two members of Mrs. May’s Conservative party have resigned, angry over her decisions – reducing her wafer-thin majority in Parliament. Public argument has raged for months on whether Britain should seek continuing access to the single market – which Brussels says is only possible if EU citizens are still free to move to Britain to work – or enforce tough immigration controls at the risk of huge new EU tariff barriers that could cripple Britain’s trade with Europe.
Mrs. May is fearful that any public scrutiny by Parliament of her plans will weaken her hand with EU governments, many of whom are determined to punish Britain for its Brexit vote and make the talks on leaving as difficult as possible.
Brexit will pass
She insists a majority in Parliament will, in the end, back a new law to open talks. She may be right. The Scots will all vote against any such law, but most members of the House of Commons, in both the ruling Conservative party and in the opposition Labour party, would be fearful of defying the views of their constituencies, even if they disagree with Brexit. But the House of Lords – the second chamber – is a different matter. The lords are not accountable to anyone. They cannot veto legislation, but, crucially, they can throw it out at least twice and delay any law for up to a year. That would be disastrous for any Brexit negotiators.
Overturn the judgement
The government has one last chance. It can – and will – appeal to Britain’s Supreme Court, in the hope of overturning the judgement. But the chances of victory there are slim. The ruling is based entirely on constitutional issues, not on politics. The High Court insisted that under the British constitution, Parliament is supreme and cannot be ignored or bypassed by the Crown – in this case, the government. The issue goes back hundreds of years and is at the very heart of Britain’s long struggle to establish a parliamentary democracy. In the old days, the issue was whether the King could make laws on his own. When King Charles I tried to do so, civil war broke out in Britain in 1649, the king was beheaded and the monarchy was abolished. When the monarchy was brought back 11 years later, it was clear that the new king or his ministers could never again defy parliament, a ruling repeatedly underlined in subsequent constitutional rulings.
What does this mean?
Most Britons do not understand the judgement, however. Millions are furious at what they see as an attempt to reverse the Brexit vote. But even some of the Leave campaign leaders see a huge irony: the referendum was about “restoring sovereignty” from Brussels, and returning power to Parliament. Yet the government is now trying to make the biggest change for generations to the constitution – which will involve scrapping thousands of EU laws – without consulting Parliament.
Confused Europeans and repercussions within Great Britain
What do Britain’s EU partners make of it all? Most are confused, sceptical and fed up with what they see as the arrogance and shenanigans of Britain’s government. Mrs. May has been touring European capitals, hoping to get a sympathetic hearing. She has, at best, received a watery smile and a polite hearing. No one wants to start any informal talks before Britain makes up its mind and invokes article 50. When Mrs. May attended a recent summit of EU leaders, she was allowed to speak for only five minutes, and her slot was scheduled for 1.00 am in the morning.
It is clear no one will make things easy for Mrs. May, at home or abroad. Scotland, which is trying to remain in the EU even if the United Kingdom as a whole withdraws, is now threatening to hold a second referendum on independence. Northern Ireland sees an economic disaster if the border with the Irish Republic is reintroduced. Britons who voted to leave the EU are furious that talks have not already begun, while those who wanted to remain are fearful for the future.
The country is deeply divided, nervous and anxious for the future.
Meanwhile, the civil war within the Conservative party between those wanting a “hard” or “soft” Brexit is gathering pace. Mrs. May’s only solution may be to call a snap general election before March. She will hope to reinforce her tiny parliamentary majority and get on with the Brexit talks. But in today’s febrile political climate, no one has any idea who might win that election.
Economy doing better than expected
The only bright spot is that the economy, despite dire predictions, is doing much better than expected. The pound has collapsed, as a sign of no confidence in Britain’s future outside the EU. But that is helping exports for the moment. The real challenge comes later, when international investments in Britain may dry up and financial dealers move from London to Frankfurt, Paris or Amsterdam.
Michael Binyon is a Senior Adviser to GPI. He has been an editorial writer, columnist and foreign correspondent for The Times (of London) since 1971. For 15 years he was based overseas, reporting from Moscow, Washington, Bonn and Brussels, before returning to London to be diplomatic editor in 1991 and becoming the main foreign editorial writer in 2000. He retired from the staff in 2009 but still writes for The Times and other publications, and is a frequent broadcaster for the BBC and French, German, Canadian, Russian and Middle Eastern radio and television.
He published “Life in Russia” in 1983, has won two British journalism prizes and was awarded the OBE by the Queen in 2000.
The views and opinions expressed in this issue brief are those of the authors and do not necessarily reflect the official policy of GPI.