What does the court ruling on Article 50 actually mean?

So it seems folk are up in arms about a High Court ruling that stated parliament must vote before the government can trigger Article 50 of the Lisbon Treaty.

Many who voted for remain – buoyed by the nonsense spouted by the likes of the Liberal Democrats and Tony Blair – seem convinced the ruling means we may actually remain members of the European Union on the sly. A number of Brexiteers, whipped up by the sort of nonsense spouted by Nigel Farage, seem convinced that parliament will now ignore the democratic will of the people made clear in the EU referendum. Remainers find it laughable that those who campaigned for parliamentary democracy to be wrestled back from Brussels are now seeking to circumvent parliamentary democracy. Brexiteers find it a tad hypocritical that those now demanding that parliament must be ultimate in respect to sovereignty are the same people who spent the last forty years giving it away to European technocrats.

The question is whether the government have the right to simply trigger Article 50 without any reference to parliament – as is usually the case in respect to treaties – or must parliament vote to trigger the clause, as is usual when making amendments to domestic law? The legal ruling in the High Court found for the latter. The fear of many is that certain parliamentarians will use this finding to block the ability to trigger Article 50. Others see it as vital to the proper scrutiny of the Brexit deal. In fact, they are adamant that Article 50 should not be triggered until the aims of the government negotiation is clear.

The situation, as far as I can see, is as follows:

  • The High Court ruling seems perfectly consistent with British law. It was always implicit, as is the case with any referendum, that parliament must still vote to effect the result. There is nothing unusual about the ruling in this.
  • It is highly unlikely either of the two most major parties will seek to block the triggering of Article 50. In fact, only yesterday, Hilary Benn gave a direct answer on BBC Daily Politics to the question of whether he – as an arch-Remainer – would vote to trigger Article 50 if it was before parliament tomorrow. He unequivocally said ‘yes’. Moreover, it would be electoral suicide for Labour to seek to the block the move. The majority of their core Northern support overwhelmingly voted to leave. Such support would dissolve overnight if they sought to block the move and would open up the door to UKIP who are their closest challengers in the North.
  • It is possible the SNP and the Liberal Democrats might seek to block the triggering of Article 50. The former because the majority of Scots voted to remain, who they are understandably most concerned about representing. The latter because they are seeking to hoover up disaffected voters given Labour’s (utterly correct) desire to uphold the democratic will of the people. However, the SNP and Liberal Democrats alone will not be sufficient to block the triggering of Article 50.
  • The demand, of several Remainers and Brexiteers, that parliament should be permitted to scrutinise whatever deal is placed on the table is quite legitimate and reasonable. A vote to leave, which should be honoured, is not a blank cheque to negotiate any terms at all. The ability to scrutinise the deal on the table in no way affects whether Article 50 should be triggered.
  • The suggestion of some that Article 50 should not be triggered until the government have made their negotiating aims clear is foolish. Despite the government’s coyness on what they are seeking from these negotiations, it is eminently true that all sides are, in point of fact, all seeking exactly the same thing. This is evident from the fact that most Remainers were clear that they wanted to see reform of the EU and the reforms they were seeking are precisely the same aims that those who wanted to leave believe are achievable through brexit.
  • The negotiating aims of all sides are: access to the single market, no customs tariffs but with the ability to make our own trade deals apart from the EU, no free movement of people and no jurisdiction of the Supreme Court whilst maintaining access to things such as Europol with as minimal a fee as possible.
  • It is highly unlikely that the EU will concede to give us all of that. They have categorised it as seeking the benefits of EU membership without any of the costs of responsibilities.
  • The question is not, then, what are the government’s negotiating aims. They are pretty well the same as the things Remainers also want. The issue at stake is what is feasible and possible to secure through negotiation.
  • The EU have made clear that they will not enter into formal negotiations until Article 50 has been triggered. It is therefore impossible to know what is possible until Article 50 has been triggered and negotiations are underway.
  • This makes it impossible for parliament to scrutinise any possible deal because the only time any possible deal will emerge is once Article 50 has been triggered. The demands to scrutinise any deal (which is entirely legitimate) directly contradicts the desire to block the triggering of Article 50 (which is necessary for any deal to emerge).

Given all of that, how ought we to proceed? I would suggest the following:

  • If both the Labour and Conservative parties are clear that they will not seek to block the will of the people, especially given the electoral suicide involved in openly doing so, the way to allay the fears of those who disbelieve them is to trigger Article 50 quickly and for both sides to do as they say and vote on it.
  • Given that both sides fundamentally agree on an ideal scenario, there is no need to outline negotiating aims because all sides agree on what they would like in an ideal world.
  • Once Article 50 has been triggered, negotiations can begin in earnest with the EU. As a deal emerges, parliament should have the right to scrutinise and amend it.

There is a basic mistrust of both sides on this issue. There is certainly a disbelief that parliament will do as they say. For example, some suggest that there is no need to vote on Article 50 as it is either a formality or a means of blocking the referendum result. The fact that a vote on triggering Article 50 is a standard point of British constitutional law, and is entirely in keeping with previous changes to domestic law, doesn’t seem to factor in their thinking. Likewise, those who do think – as is technically true – the referendum was merely advisory and parliament can reject it if it wishes are being naive about the strength of feeling, the electoral ramifications for those who do so and the fact that it would be an unprecedented move not to mention a major problem for any future referenda as well as a blow to the democracy which they claim to support.

The fact of the matter is this, Article 50 will be triggered and it is highly unlikely anybody will block it. The dispute will revolve around the terms of brexit and the deal that emerges. What that looks like, however, waits to be seen and can only really be known once the button has been pressed.

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