Why Are Remainers Celebrating? This Judgment Will Give Brexit More Legitimacy

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By Jeremy Brier | 3:35 pm, November 3, 2016
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It might be the result of some sort of psychological disorder to do with 2016 being the year of Shocking Things Happening Everywhere (diagnosed by the Twitterati with increasing fear prior to the US Elections) but the British media has erupted in hyperbole following the Lord Chief Justice’s ruling on whether the Government must obtain Parliamentary approval for the UK to give the European Community notice of its imminent departure.

The pro-Leave Daily Mail led the news this morning with an angry “BREXIT BLOCKED”, generating a string of irate comments indicating that its readers were, well, unsurprisingly under the illusion that Brexit was not going to happen. Meanwhile, the pro-Remain Independent described the High Court ruling as “extraordinary” and my many Europhile Facebook friends were using various emoticons to indicate their profound morning joy, apparently under the same illusion as Daily Mail readers but with the obverse reaction.   

I hate to be all boring and lawyerly about this. But these responses are wide of the mark. This will not block Brexit any more than a dead hedgehog blocks a road: it’s a small, spiky hurdle which can be easily swerved even if it’s a bit unpleasant on the way round. Nor is it a particularly surprising judgment which should cause Remainers to pop open the Prosecco.   

This was not a case about the merits of leaving the European Union. It does not bear on that political matter one way or another. The powerful Court which gave this Judgment stated that expressly. This was a case solely about the extent of the Crown’s powers under its prerogative, the powers delegated to the government of the day by the Crown to do things executively. That delegated prerogative is vitally important for governments to do their business. This case, in layman’s terms, was simply about how far that prerogative extends in relation to triggering Article 50 and whether in fact it enables Mrs May to do so without consulting Parliament.

It is no surprise that the prerogative does not extend so far. To be honest, I half-reckon the Government knew this and has been well-aware for some time that this matter will come before Parliament. The Court case (and subsequent appeal) buys them badly-needed preparation time and catalyses public support.

The Government argued that the European Communities Act 1972, which Parliament passed when the UK jointed the EEC (as it then was), intended that the Crown would retain its prerogative power to effect a withdrawal from the EU. It was argued that Parliament therefore on a previous occasion (when joining the European Economic Community) made clear its intention that the Crown (through its prerogative) should be able to decide whether EC law should cease to have effect in UK domestic law. In a nutshell, the Government was saying that when Parliament voted to join the European Community, it also enabled the Government to decide to leave.

The problem is that this argument has been found to be wrong. The 1972 Act says nothing of the sort and it is a cornerstone of our unwritten constitution that the Crown cannot simply change domestic law by exercising its prerogative powers. Jacob Rees-Mogg MP and others have made valiant attempts to argue that the Referendum Act 2015 itself (enabling the EU Referendum) was in effect Parliament giving the Crown the power to give notice under Article 50, but unfortunately for Jacob and others, this was expressly not argued by the Government (see paragraph 105 of the Judgment). Moreover, the Referendum Act 2015 does not state this and in fact (as the Judges noticed) the briefing paper provided to MPs about that Act was that the Referendum would be of advisory effect.

So this all indicates that the Judgment was right and, frankly, I’d be very surprised if the Supreme Court took a different view. However, to my mind, the fact that there will now be a debate before Parliament will only strengthen Brexit rather than weaken it. This is because – for all the ferocity of the debate to come – there will be an overwhelming political imperative for MPs to vote in favour of giving Article 50 notice and they undoubtedly will do so.

The Leavers will vote that way, obviously.  But the Remainers will too by and large because of their sense that they must vote to give effect to the will of the people. Consider, for example, the tweet of Grant Shapps MP today: “I was a Remainer, but there’s no way I’m voting for parliament to frustrate the will of my constituents & the British people!” Indeed, the pro-Remain Prime Minister herself falls into that category.

What will unite MPs who were on different sides of the Referendum debate is not wanting to show disrespect towards the electorate’s vote. And if they are not united by that desire, some will nevertheless be whipped into line by some sort of Frank Underwood figures in the Government Whips’ Office.  Many Labour and opposition MPs (and pro-Remain Conservatives) will make an enormous noise during the debate. But expect a good majority to vote “with heavy hearts” (etc. etc.) for what the electorate decided on 23rd June 2016.

This debate, and the Parliamentary vote thereafter which will provide the Government with a legislated mandate for giving notice under Article 50 will enable it to be said that Brexit (on the terms proposed: perhaps with some pre-debate amendments to be thrashed out) has greater accountability and legitimacy, not less.

Much like going to war, the country unites behind a course of action far better when it has been openly debated in Parliament, as opposed to when it is simply mandated by the Government using the Crown Prerogative.

So the Daily Mail and Theresa May might sigh about out-of-touch judges. But the judges are right. And if the Leave camp digest the Judgment carefully and act prudently, in accordance with the UK’s deep-rooted constitutional principles, they could well turn this to their advantage. So, with apologies to friends on the Remain Side who are cheering today, this is a Pyrrhic victory for you.