What a time it has been! Not long ago, Theresa May was delivering the rallying cry of ‘Brexit means Brexit’. Fast forward to now (with a quick trip to meet President Trump and do a deal with Turkey) and it’s shockingly short bills, floppy whips and faint hopes of peeling May’s fingers off the trigger of Article 50.
The Supreme Court, after over a month of hearing evidence has reached a verdict on Tuesday, they decided with a majority of 8 to 3 that the Prime Minister cannot trigger Article 50 without an Act of Parliament giving permission to do so.
Why have they reached this verdict?
There are a number of reasons why the Supreme Court has reached this verdict, however they can summarised under one heading – insufficient legislative provision.
The 1972 European Communities Act set the precedent for EU laws to be an independent source of UK law.
As such, if we withdraw from the EU a vital source of our laws, as well as a wide ranging section of our civil rights literally disappear and thus Parliament must authorise such a drastic change to our laws.
Furthermore, The European Union Referendum Act (unbelievably) did not clearly state what would happen in the outcome of the referendum so any law being passed to enact the referendum result must be made by an Act of Parliament, as the current one granting permission for the referendum to take place is not sufficient.
Why does it matter?
It boils down to where power lies – with Ministers or Parliament.
Managing treaties has traditionally been in the domain of Ministers and the Prime Minister due to the Royal Prerogative (powers that used to belong to the Monarch that over time were transferred to the Government)
However, due to the Constitutional, legal and civil rights implications of Brexit, Theresa May has to consult the representatives of the people (MPs).
The Supreme Court ruling is essentially upholding the most fundamental concept of our Constitution – Parliamentary Sovereignty – in short Parliament should have the power to make, amend and repeal any laws.
The Bill itself
Forgive me if this part is brief, but then so is the Bill. Just 133 words, it’s the shortest bill in living memory, and worryingly lacking in detail. It does not detail procedure for triggering Article 50, a trigger date, or Parliamentary procedure in general around Brexit.
MPs only have 5 days to debate and make amendments, which considering the Transport for London Act 2016 outlining some very dull financial rules for Transport for London took 5 years to get passed, you could argue is a little rushed.
There is an issue of constituency vs. national loyalty for MPs. The overwhelming majority of Labour constituencies voted remain, leaving Labour MPs with some tough choices as Jeremy Corbyn has imposed a 3 line whip on his MPs to approve the bill, (but then who’s going to pay attention to a whip imposed by a man who defied the party whip a whopping 428 times when he was an MP).
Two party whips have already stated that they will vote against the bill despite Corbyn’s wishes[and Tulip Siddiq a shadow frontbench member became the first to say she would resign rather than vote in favour of Brexit and betray her constituents.
The Conservatives also have an issue, there are rumours that some members of the party will vote against the Bill triggering Article 50, which could be dangerous to a party with a majority of just 14.
However there was one piece of news the Government will be pleased with: legally Theresa May is not obliged to consult the devolved assemblies despite their semi-autonomous legal status in the UK.
But can Parliament trigger Article 50 without the devolved assemblies’ direct input? Well, it’s currently not looking like they have much choice.
The Welsh people voted 53% to leave in a similar line with voters in England and so the assembly will be under pressure to side with the Government.
Northern Ireland is in a particularly perilous position without their experienced Deputy First Minister Martin McGuinness and a suspended Government.
Scotland, inevitably, is pursuing a firmer stand as they voted overwhelmingly to remain. First Minister Nicola Sturgeon has already commented that the Scottish National Party (SNP) had ’50 amendments at the ready’ and has even proposed holding a Scottish debate and vote outside of Parliament.
So what next? (Updated 02 February 2017)
The Government won the vote in the House of Commons on the Bill to trigger Article 50 by 498 to 114.
There were 47 Labour rebels (who did not vote for the Bill as their leader asked them to) and 13 of these were Labour front benchers providing a real headache for the party.
This is not the end though. It will now go to a Committee stage where amendments are debated before going to the House of Lords. The Government has also produced a White Paper. you can read more about the paper here
I would still advise Theresa to take it day by day (it’s worked well so far right?!).