Don’t Be Fooled. UK Supreme Court Decision Only Bolsters Brexit Odds.

On sanctioning Brexit, acceptance of May’s negotiated settlement seems all the more likely.
January 24, 2017 • Commentary
This article appeared on The Hill (Online) on January 24, 2017.

For those grasping at straws, today’s 8–3 decision by the United Kingdom’s Supreme Court that Parliament must vote on starting the process to leave the European Union might seem like a victory.

It was notionally a defeat for the government, whose case was based around the idea that Prime Minister Theresa May could trigger Article 50 herself without consultation.

“Now is the chance for Parliament to stand up and stop this madness!” exclaimed a “Remain”-voting friend of mine on Facebook, longing for the House of Commons and House of Lords to halt the Brexit train. 

My friend is set to be very disappointed. Today’s judgment will, in the long‐​term, actually strengthen the government’s position.

May’s preferred form of Brexit, which includes leaving both the Single Market and the customs union, will now have Parliamentary legitimacy.

To see why, one has to understand British politics. A Parliamentary vote, through creating another hurdle, obviously raises the possibility Brexit might be voted against; except the arithmetic does not add up.

The Conservative Party has a majority in the House of Commons. Even if some Conservatives voted against the government, there would be many more Labour Parliament members (MPs) and minor party MPs who would back the Article 50 trigger.

They know that if the referendum had been held along the constituency boundaries of a general election, “Leave” would have won 421 seats, giving it a majority of 92.

That is larger than the majority seen in Tony Blair’s 1997 landslide victory. If MPs in Leave areas voted against leaving, they would be signing their political death warrants and finding themselves out of a job in 2020.

The House of Lords is another matter. But, even here, the constitutional crisis caused by the upper house denying the will of both a referendum and the Commons would severely undermine the chamber’s legitimacy.

Brexit would not be halted by Lords’ opposition, merely delayed, as the government would make good on its threat to pack the House of Lords with enough newly appointed peers until the legislation was passed.

What’s more, in today’s decision, the Supreme Court justices ruled against the opinion that the devolved administrations of Scotland, Wales and Northern Ireland could have a vote or say in the process.

Scotland, which voted strongly to remain in the EU, could have been a real sticking point to ever getting out. 

In sum, Parliament could certainly delay Brexit. Undoubtedly, clever amendments to the legislation will be attempted in the Commons.

But the nature of the UK Supreme Court decision, which said nothing about how government had to get Parliamentary approval, gives license for the government to move forward quickly with a simple, clean bill and dare MPs to vote it down.

Therefore, it’s almost certain that the legislation will pass, and this Parliamentary approval — a rubber stamp for Britain to actually leave — will, in the longer term, work in May’s favour.

At the end of the two‐​year Article 50 process, the U.K. will leave the European Union unless all sides agree to extend negotiations.

May has stated clearly what she wants the outcome of these negotiations to be — a U.K. outside of the EU Single Market and customs union, preferably with a free trade agreement with the whole EU and trade agreements with other major economies.

This, as I argued last week, was the only way to deliver on referendum pledges to “take back control” over trade, migration, public money and regulation.

May also promised Parliament a vote on her deal, which will become a vote for her negotiated arrangements versus a vote to leave with no deal.

She will therefore be able to invert the narrative, explaining how a Parliamentary vote to reject the deal would produce a “cliff‐​edge Brexit,” which “Remainers” previously argued would be the most damaging kind. How useful, at this stage, that Parliament would have already given assent to leaving.

The lawyers attempting to halt Brexit know this is a huge political problem for them. That’s why they are currently working through the Irish courts on a case to try to get a ruling that Article 50 is reversible.

They want to create space for Remain MPs to delay with the hope that some event, or May’s failure in negotiations, will trigger a change of heart.

Maybe, if that case is successful, the tectonic plates will have shifted. However, all today’s decision means is that Parliament must vote to trigger the start of Brexit. Vote for it they will.

On sanctioning Brexit, acceptance of May’s negotiated settlement seems all the more likely.

About the Author
Ryan Bourne

R. Evan Scharf Chair for the Public Understanding of Economics