Yesterday’s Supreme Court judgment forces Theresa May’s government to get approval from Parliament before triggering Article 50. In a conversation with FNF Europe Baroness Ros Scott, Member of the House of Lords and ALDE Party Vice President, sheds light on the importance of the judgment for British politics and the fresh impetus Brexit has given to the UK Liberal Democrats.
Why is yesterday’s judgment of such high importance for the UK and what does it imply for Theresa May’s government?
The United Kingdom does not have a written constitution but that it not to say that it lacks a constitutional framework. It is not codified but is based on a mix of statute and precedent going back many hundreds of years, some of which were rehearsed in great detail during the High Court hearings.
It’s also notable that the challenge came, not from Parliament itself, or from a particular group of Parliamentarians, but from a private citizen, Ms Gina Miller. The deliberations of both Courts focused not on the issue of Brexit itself, but on the extent of prerogative power and whether the European Treaties should be seen as falling within it. One issue arising from that is the extent to which the devolved administrations have a say in the matter. The fact that three judges dissented from the final ruling suggests that the Government may have been right to seek clarification through the Courts.
[The judgment] is mixed news for the Government; Parliament may well now be more confident in asserting its rights as the negotiating process unfolds and issues such as access to the Single Market, the acquired rights of citizens and membership of EU bodies will be hotly contested. If the impacts of triggering Article 50 are as damaging as some predict, then the context of future debate may change significantly. On the other hand, Government will be relieved that the ruling has neutralised the Scottish First Ministers threat to derail Brexit.
So what now? Will Theresa May face strong opposition in Parliament?
To be clear, the Government did not expect to win the appeal to the Supreme Court, evidenced by the existence of a very short draft Bill, which it is expected will start its progress through Parliament next week. But here, politics and law co-incident; Government has legal certainty and has assured its own right wing that it is serious about Brexit.
In my view, it is inevitable that the Bill will pass through the Commons very quickly. A few pro European Conservatives such as the veteran Ken Clark may vote against it, as will the Scottish Nationalists. The position of the Labour Party has not been clear to date, but the most recent pronouncements from Mr Corbyn suggest that they will scrutinise the Bill and table amendments, but will ultimately vote in favour of it. There are murmurings that there will be some Labour rebels, possibly as many as 50.
The Liberal Democrat position is that whilst they respect the decision of the people made on June 23rd, it was a vote to leave the EU, and not a vote on what form Brexit will take, and what sort of deal we end up with after negotiation. The Leader, Tim Farron, has been advocating a referendum on the final outcome of the negotiations and has made clear that without such a commitment in the legislation coming forward he will not support the Bill. Unsurprisingly, Government has not shown any appetite for this course of action.
The passage of the Bill through the House of Commons will be fast, given the apparent cross party consensus that the outcome of June 23rd must be upheld, and that the rules of procedure give the Government a strong hand in pushing the business through.
And how about the House of Lords? Its Members form political groups, but they are not elected – unlike the Members of the House of Commons. Is there more leeway for the Lords to contest or prolong the triggering of Article 50?
The House of Lords is going to be much more difficult and harder to predict. It is an unelected House with a significant pro – Remain majority, with rules of procedure which make it more difficult for Government to force the Bill through at speed. Liberal Democrat Lords will attempt to amend the Bill to ensure a Referendum on the outcome of the negotiations, and may get considerable support in a Chamber which is much less politically partisan.
The big question is how far the Lords is prepared to take the fight. The constitutional conventions are well established to ensure that the primacy of the elected Chamber is upheld. The Lords sees its role as a scrutinising and revising chamber and to attempt to go further would provoke a constitutional crisis. It is almost certain that after some protracted procedure, the Government will get its way and the Prime Ministers pledge of triggering Article 50 before March will be met.
In short, the ruling itself does not fundamentally change the situation with regard to triggering Article 50, but it is significant in defining the limits to Executive power, and the role of the Devolved Administrations.
As a clearly pro-European party, how has the Brexit vote influenced the standing of the Liberal Democrats?
For the Liberal Democrats Brexit has breathed new life into a Party many thought was finished after their rout in the 2015 General Election. For the first time in years they have a position on the big issue of the day which is well understood and distinctive.
New members have been joining the Party since May 2015 and the Party has enjoyed success in local government elections recently, including in strongly Leave voting areas. They performed well in the by-election triggered by David Cameron’s resignation, and won a sensational victory in the London suburb of Richmond on Thames in a Parliamentary by-election dominated by Brexit.
Caroline Margaux Haury arbeitet als European Affairs Manager der Friedrich-Naumann-Stiftung für die Freiheit in Brüssel.