by Frank Schnittger
Thu Nov 3rd, 2016 at 01:30:55 PM EST
The High Court has found that the UK Government cannot trigger Article 50 "by Royal Prerogative" but must seek the approval of Parliament first:
The government had argued that it could invoke article 50 without parliamentary approval, using royal prerogative, a set of executive powers. The court found, however, that because article 50 triggers an irreversible process leading to Brexit after two years, it overturns the 1972 European Communities Act, which brought the UK into the Common Market.
"The most fundamental rule of the UK's constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament, it has been established for hundreds of years that the Crown -i.e. the Government of the day - cannot by exercise of prerogative powers override legislation enacted by Parliament," the court said.
The government argued that MPs who passed the 1972 act intended that the Crown should retain its prerogative powers to withdraw from the EU treaties. But the court rejected the argument, saying there was nothing in the 1972 act which supported it. And the judges accepted the main argument against the government, that EU membership conferred rights on UK citizens which the government could not remove without parliamentary approval.
The government has said it will appeal the decision, but presuming that decision is upheld by the Supreme Court, a whole new political dynamic will be unleashed. A clear majority of MPs voted remain in the referendum, and while many, including Jeremy Corbyn, have said that the will of the people must be respected, a vote on the matter ensures they will have to "own" the consequences of invoking A50. The Government's lack of a clear negotiating strategy will be laid bare, and the opposition have the opportunity to re-open the question should they decide to do so.
Jeremy Corbyn now becomes the pivotal figure in the emerging new dynamic. If he retains his pro-Brexit stance, it seems to me that invoking A50 is likely to be supported by a majority in Parliament. However if he, as Leader of the Opposition, decides that the 48% who voted Remain, also deserve some representation, then all bets are off. It remains possible that the Tory Remainers will be whipped into line and that the Government will retain its majority, but it wouldn't take many to "vote with their consciences" to overturn the slim Government majority in Parliament.
So what might prompt Jeremy Corbyn to change his position? Firstly, the left who have always opposed the EU have done so not so much out of principle, but out of opposition to the increasingly corporatist, globalist, neo-liberal and neo-conservative trends in EU policy - trends, it might be said, which were in many ways led by the Tories and the Blairite wing of the Labour Party. Stating that Labour, instead of invoking A50, would instead convene a Europe-wide conference of progressive parties to reverse those trends in the EU would be not so much a reversal of principle, but of strategy. Corbyn can state that the people were right to reject the EU as it is currently configured, but that the UK can exercise more influence over its destiny by reforming the EU from within.
Secondly, it is clear from the EU's unanimous response to the referendum, that invoking A50 is a one way ticket to hell. As Irish Taoiseach, Enda Kenny said yesterday
Taoiseach Enda Kenny has forecast "vicious" negotiations over Brexit, reflecting a belief in Government circles that the British have underestimated the level of antagonism towards them across the European Union.
Top-level sources in Government believe there is little appreciation on the part of the UK government of the level of hostility they are likely to face once prime minister Theresa May triggers article 50 of the Lisbon Treaty.
New trading arrangements between the UK and the EU will have to be agreed by the remaining 27 member states and there are signs that at least some of those countries are determined to drive a hard bargain.
"What the British don't seem to understand is that many of the countries in eastern Europe are deeply hurt and angry at the outcome of the Brexit referendum, particularly at the way their nationals were targeted as undesirable immigrants," said one Government source.
Basically, the UK Government loses almost all bargaining leverage and control once A50 is triggered, and can be held to ransom by any number of Eastern European and other members states angered at their behaviour towards their citizen's or with other axes to grind. A negotiation on the future of the EU without invoking A50 once again places the UK in an influential position. Corbyn can always claim that he reserves the right to invoke A50 should those discussions prove fruitless, but at least he has bought himself some time.
Thirdly, it has become clear, since the Referendum, that Brexit puts the whole future of the UK in doubt. The Scots Nationalists are already talking about another Referendum on independence, and the Northern Ireland parties are beginning to look at alternatives:
Sinn Féin leader Gerry Adams said the forum should "not be about a hard Brexit or a soft Brexit. It needs to be about moving beyond the consequences of Brexit and looking at alternatives." He said his party wanted a referendum on Irish unity, but also suggested a "designated special status" for Northern Ireland, citing other unique EU arrangements such as Denmark and Greenland.
Corbyn could present himself as a unifier seeking to unite all of the UK as opposed to the English dominated Tories and UKIP who risk tearing it apart.
Fourthly, it is clear that the referendum has unleashed all sorts of neo-fascist, racist, xenophobic and bigoted forces in the UK. A progressive Labour leader really doesn't want to be competing for that sort of vote. They will vote for UKIP or the Tories whatever Labour does. The 48% of the electorate who voted Remain, on the other hand, have no one to vote for other than the Lib Dems, Scottish Nationalists or Sinn Fein. Labour have an electoral opportunity to capitalise on their disenfranchisement and represent their concerns.
Finally there is evidence that progressive Labour policies are what the electorate really want, not Brexit. The real reason for the Brexit vote
A comprehensive new study shows that austerity, not immigration, was the main reason people voted for Brexit back in June. But the media appears to have ignored the findings, with a brief report on Indy100 being the only mainstream coverage.
The report echoes the comments from Scottish First Minister Nicola Sturgeon, who said the vote was born of "inequality", "feelings of powerlessness", and "austerity budgets". Previous findings from the Joseph Rowntree Foundation (JRF) also chime with the University of Warwick analysis. The JRF found that those in the poorest areas were much more likely to vote Brexit.
I have no doubt that Theresa May will "go to the country" and call a general election if she loses the A50 vote in Parliament. Indeed, given the disarray in Labour and UKIP and her own lack of a personal mandate, it is a prospect she might very well welcome. The UK economy is still doing better than the doom mongers projected, and much of her party and support base is caught up in a full blown nationalist hysteria over Brexit. She would undoubtedly expect to win.
However if Corbyn and the Labour party were to present a coherent alternative based on ending austerity policies, reinforcing the integrity of the UK, and reforming the EU, I suspect that even some Leave voters might swallow their pride and give it a go. After all, the current government haven't exactly been demonstrating great competence or presenting a coherent alternative to that point of view. Brexit will be Titanic success
Boris Johnson has said Britain will make a "Titanic success of Brexit" and compared himself to the dog strangled by Michael Heseltine as he collected a comeback of the year at the Spectator Awards on Thursday night.
"It sank," said former chancellor George Osborne, who was presenting Johnson with his award.