Wednesday, January 25, 2017

The Brexit decision

The UK Supreme Court has upheld the High Court's decision on Brexit, upholding parliamentary sovereignty and the principle that it is parliament that makes the laws, not royal decree:

The government has lost its fast-tracked appeal to the supreme court, forcing ministers to introduce emergency legislation into parliament to authorise the UK’s departure from the EU.

In a judgment that sets a far-reaching constitutional precedent and upholds parliamentary sovereignty, the court ruled by a majority of eight justices to three that MPs and peers must give their consent before the government can trigger article 50 and formally initiate Brexit.

The decision sets clear limits on the extent of the government’s executive powers. Rights embedded in the law by the 1972 European Communities Act, which took the UK into what was then the European Community, cannot be removed by the government’s prerogative powers, a majority of the justices declared.

The UK government will now introduce a bill to trigger Article 50, but its not clear how detailed that bill needs to be. If they get it wrong, it'll be straight back to court. Meanwhile, parliament will also get to amend and hear submissions on the bill, possibly introducing constraints on the government's plans.

The court also ruled that the UK government did not have to consult its devolved nations over Brexit and that the Sewel Convention, a core part of the constitutional structure of the UK, was not legally binding. Of course, that doesn't mean that its not politically binding, and ignoring it is asking for a fight between Westminster and the devolved nations. Scotland is going to act as if their consent is required anyway, backed by the a clear threat of a second independence referendum. And if England ignores constitutional convention and purports to legislate for Scotland against Scottish wishes, that referendum should be easy to win.