After today’s Supreme Court’s ruling (8-3) that an Act of Parliament is required to trigger Article 50, the right-leaning press will no doubt raise a few eyebrows about the “impartiality” of the Supreme Court judges. But what really matters is the detail.
The truth is that Theresa May will have been expecting to lose, and will actually be quite relieved that at least now there is clarity. How much worse it would have been if Gina Miller’s case had surfaced in the middle of the Brexit negotiations; or if the judges had instructed Parliament to consult with devolved governments of Wales, Scotland and Ireland; or, worst of all, had the Court instructed Parliament to repeal the 1972 European Communities Act before triggering Article 50, in a bid to protect “human rights”.
I understand from Commons sources that the government were preparing four different legal drafts of a bill to put to Parliament so as to trigger Article 50 as soon as possible. These choices can now be narrowed down to a single clause bill. The judges have ruled that parliament not only must be consulted, but must also be given a chance to vote on an act of parliament. This will be especially difficult in the Lords, where Lib Dem and Labour may try to delay the Article 50 bill by up to thirteen months.
If the Lords are set on this suicide mission, it could possibly lead to Theresa May trying to call an election to get her Brexit mandate endorsed by the people at a time when Labour is having an existential crisis over which way its MPs will vote on Article 50.
The only snag is that even if May feel she has no choice to try and call an election, she may not be able to achieve two-thirds of MPs supporting a motion for an early election. Many Labour MPs would know that supporting such a motion would result in a bloodbath which could see the end of Labour as a party, not to mention them losing their seats. As many as 100 seats could be lost, which would finish Labour as a party of credible opposition, not the least in working-class cities in the North and Midlands.
There is some comfort for the government in the Court’s decision that devolved assemblies in Scotland, Northern Ireland and Wales need not give consent. The judges have confirmed AV Dicey’s point in his seminal 1885 work on the English constitution that the British Parliament is “an absolutely sovereign legislature” with the “right to make or unmake any law”.
The exclusion of the devolved assemblies probably also helps the Supreme Court’s reputation: if they had given such a decision, I would have expected not just serious questions about the impartiality of the Supreme Court, but a full-blown constitutional crisis.
The Court has avoided that danger. Lord Chancellor Elizabeth Truss – not a lawyer by training, and criticised for not supporting the high court judges after their October Article 50 ruling – has issued a statement saying that she respects the ruling and the independence of the judiciary. That has been interpreted as a belated apology on her behalf. A peace offering.
People are now less likely to suggest that the government takes a close look at how the Court operates, nor how judges are appointed. This is relevant since there are several judges retiring, including court president Lord Neuberger.
For the record, of the 11 judges only one, Lord Kerr, is a Catholic, or at least raised a Catholic – having attended St Colman’s College, a Catholic school in Newry, County Armagh, Northern Ireland. He was one of the eight judges voting to uphold the high court judgement.
There is currently one vacancy among the judges, following previous retirements. In the US Supreme Court (where there is also a vacancy which Trump is expected to fill with a hardline conservative), appointments are heavily politicised – as opposed to the UK where the appointments are theoretically made on a politically neutral basis to ensure the non-partiality of the judiciary.
It will be interesting to see the unfolding political reaction. Will MPs dare to question the impartial credentials of the 11 strong bench of the UK’s finest legal minds? How many amendments will be tabled by Labour and Lib Dems? The SNP have already said they are tabling as many as fifty. Will the Lib Dem peers embark on a Kamikaze mission, trying their best to delay the Article 50 bill by up to the maximum period of 13 months allowed by the Lords?
Whatever her view of the judges, Theresa May has made it clear that she is prepared take action against the rebellious and unelected Lords. She will be more than prepared to curb the powers of peers who attempt to thwart the “will of the people”.
The Supreme Court judgment has brought into question the very relationship between the UK’s legislature and executive. That question will continue to be a live one as the government decides on its next steps, beginning with the delicate task of drafting of its short Article 50 bill.