There can be little doubt that the government lost its case over the exercise of prerogative power to trigger notification of Article 50 (the mechanism by which the UK begins the process of leaving the European Union) very badly in the High Court. The court’s ruling is comprehensive - and damning.
As public law experts have noted, the government’s legal case would have been stronger if it had conceded that withdrawal from the European Union is not inevitable after Article 50 has been triggered. Lord Kerr, the British diplomat who authored Article 50, has argued that the process is reversible; that the withdrawal can itself be withdrawn. That seems to be perfectly consistent with the text of Article 50, precisely because it is notably silent on this point – it doesn’t specify anything about revoking the notification, and the history of the European Union is replete with creative political use of the silences, blank spaces and inconsistencies in European law. (Indeed, when the founders of the European Coal and Steel Community signed the Treaty of Paris in 1951, the paper itself was blank: they had been negotiating so extensively over its terms that a final text was not ready for the official signing ceremony. “Europe started as a blank page”, the Dutch political theorist Luuk Van Middelaar once wrote).
The confidence of the High Court’s ruling on this point would therefore appear misplaced. It asserted that the notification of Article 50 would trigger the irreversible loss of the claimants’ rights. But that interpretation can be challenged in law, and in practice it cannot be certain that Article 50 is irrevocable, given the political contingencies. Yet for obvious political reasons, the government considered it untenable to concede that Article 50, once invoked, could be reversed.
It seems unlikely that the government will change its stance and decide to argue that Article 50 is revocable when the case comes before the Supreme Court in December. In addition to the political hit it would take, the government would then be in disagreement with the claimants over the interpretation of Article 50, which is a piece of EU law. And in that instance, the Supreme Court would have to refer the case to the European Court of Justice. As one leading European law expert, George Peretz QC put it, "if there is a question of European Union law [in a Supreme Court case] they have to refer it to the ECJ, unless the answer is obvious. That's a basic principle of EU law."
So the government will be back to arguing that prerogative power does indeed apply to Article 50, on which the High Court’s ruling was clear and decisive. It will likely lose. Then the focus will shift back to Parliament.
If legislation, rather than a substantive motion, is required to give effect to the courts’ ruling, then it will be a very short bill, as Hannah White at the Institute for Government has argued. The government will not want a Christmas tree on which pro-Europeans can hang all sorts of amendments. Instead, the opposition parties, and Remain Conservatives, are likely to try to amend the legislation, as White notes, “to place conditions on the Government before it can trigger Article 50. These could take the form of timing or process requirements – for example, a requirement on the Government to provide Parliament with information about its negotiating position before triggering Article 50.” This also makes it very unlikely that MPs will be able to insert a clause in the Bill requiring a second referendum on the terms of Brexit, as Owen Smith MP wants to do. Parliamentary clerks would rule such amendments inadmissible. But it is not obvious that the legislation will take such a long time to get through Parliament that the timetable for triggering Article 50 before the end of March 2017 will slip. Governments can strip the legislative barnacles off the boat and clear the path for an emergency bill relatively easily if they need to, and this legislation will take precedence over everything else. Pro-European MPs will extract a price from the government, but they will not vote to stop Article 50 being triggered.
Nicola Sturgeon has given notice, however, that the SNP will use the legal opening provided by the High Court to open up new flanks of attack on the government. This will bring the tensions between the constituent nations of the UK, and an emerging soft federalist vs unionist hard Brexit, fully into view.
A detour into history may help explain this. One of Lord Kerr’s namesakes is Philip Kerr, later Lord Lothian. Each man was once the UK’s ambassador to the USA - the latter during the early days of World War Two, when he gathered support in Washington for the British war effort, before dying of exhaustion. He was also, earlier in his life, a leading figure in Milner’s Kindergarten, a group of young men who served Lord Milner as High Commissioner in South Africa at the turn of the twentieth century. They would become ardent imperialists and advocates of Imperial Federation between Great Britain and its settler colonies. In their writings, one can trace the antecedents of the Eurosceptic idea of the Anglosphere that figures such as Dan Hannan have done so much to popularize. And yet towards the ends of their careers, Kerr and his peers, like the tireless Lionel Curtis, would come to favour Western European federation, as a step towards a larger, multinational federation of the liberal democracies. Federation was vital to the prevention of war, and they had seen too much war in their lives.
This federalist tradition was lost after World War Two, but it was influential on continental thinkers framing the emerging European Union. It has resurfaced as the United Kingdom grapples with its own internal relations, as well as its place in the world, as a consequence of Brexit. Gordon Brown has made the case for a federalist Brexit in forceful terms today, and if the United Kingdom pursues a flexible Brexit – or “flexit” - it will be a federalist one. MPs from the SNP and SDLP, and some Liberal Democrat and Labour MPs, are likely to support distinct arrangements for the constituent nations of the UK. The legislation to authorize the notification of Article 50 will give them an opportunity to make their case. This will enlarge our democracy, not diminish it.
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