The high court’s ruling that the government needs parliament’s approval before invoking article 50 has provoked roars of predictable outrage from the Brexit camp. Cries of “betrayal” and “a war on democracy” swamp Twitter, in a way that suggests that those who campaigned in the name of sovereignty are remarkably reluctant to accept what that sovereignty means. Now the high court has issued a short and forceful corrective that, for the sake of clarity, can be summarised like this: because parliament is sovereign, unrestrained executive power can only be used in matters where parliament has no say. Parliamentary sovereignty means that primary legislation, like the act that subordinated some UK law to Europe’s in 1972, cannot be overturned just on the government’s say so. Therefore the government cannot invoke article 50 without parliament’s authority.
Brexiters’ cries of foul ignore the facts. Both sides accepted that the case was within the court’s jurisdiction. They agreed too that it was a matter only of how, not if, article 50 should be invoked. This was no backdoor attempt to reverse the outcome of the referendum. There was no conspiracy. Rather, three of the most senior judges in England and Wales heard arguments on both sides from some of the best legal minds in the country and unanimously agreed that the law demanded parliament had a say.
The decision was expressed with such force and clarity that it is hard to imagine a successful appeal. For that reason alone, the government is wrong to insist it is going to try anyway, a decision that will make it even harder to meet the prime minister’s pledge to trigger article 50 by the end of March. That means a four-day hearing of the full court, currently eleven permanent justices. Scotland, Wales and possibly Northern Ireland are all likely to want to be involved, exacerbating division. And each session will be live-streamed in full view of global markets eager to trade on uncertainty.
Instead of continuing an expensive and time-consuming fight in an attempt to seek legitimacy for riding roughshod over parliament, the government would be much wiser to do what it should have done from the start and ask for parliament’s approval to start negotiations on the basis of a clear explanation of what it hopes to achieve. However, the overwhelming political question remains how to manage the consequences of the referendum in a way that heals rather than deepens differences, and in the context of the narrative of betrayal so eagerly fostered by some of her MPs and activists, the prime minister may believe it is better to be seen to fight all the way even if she ends up with the same result. Yet at some point soon, she must stand up to the insatiable zealots in the debate and confront them with her vision for Britain’s future relationship with the EU, and she must do it in parliament.
Meanwhile the government’s business managers will be aghast. They know they will be unlikely to get away with a simple vote of both houses. It might appear the least-cost option, but while the high court’s judgement is carefully non-prescriptive, it indicates that new legislation is necessary. If the government thinks differently, it risks another legal challenge. Yet getting a bill of this consequence through parliament, however short and apparently non-committal it is, conjures up a long vista of revolt and negotiation that is likely to extinguish hopes of any other legislative initiative for the rest of the session.
But now, those MPs – a majority – who supported remain are handed the challenge of holding the government to account without feeding into the Brexiters’ conspiracy theories. In particular, it is time for Labour, not least because it is the official opposition, to get on and agree a clear position. Some pro-remain MPs like Nick Clegg who has made much of the running in this debate would like a cross-party alliance around a demand for a second referendum to approve the final deal, and a commitment to staying in the single market. That may be hard for Jeremy Corbyn to accept. But, not least because an early election is back on the cards, he must as a matter of urgency set out what he does want, and how Labour will judge the government’s approach. It is time for a strategy rather than a series of important but piecemeal demands. Parliament is back where it should be, at the heart of the debate. Now Labour must be in the thick of the contest, bold and principled in support of the national interest.
