The UK Supreme Court is expected to rule this month on whether the Government requires an act of Parliament to trigger Article 50 and commence formal exit negotiations with the EU. The potentially landmark decision could shape UK politics in key ways in 2017 given that many legislators have different priorities to the government on the Brexit agenda.
If the court rules that legislation is required, as many legal scholars expect, it will both raise the prospects that Article 50 may not be triggered until after the self-imposed March deadline that the prime minister has set, and also that Parliament will ultimately also get a vote on any final deal that emerges in coming years from the EU negotiations. In so doing, this raises the odds of a ‘softer Brexit’ given the large number of pro-EU legislators in both the House of Commons and House of Lords.
Some Brexiteers are already concerned that the UK’s EU departure could even be derailed by the Supreme Court’s decision. However, the real significance of the impending judicial decision is that it will set rules of the process that May will have to follow as she attempts to implement the results of last June’s referendum.
Previously, May’s government had seemed intent on steamrolling Article 50 in a way that could further polarise a nation split down the middle by the ballot. The prime minister acknowledged herself in a New Year’s message to the nation that the referendum had been “divisive” and that there is now a need to unite in 2017.
Parliament can help deliver on that agenda.
It is likely that the UK’s exit strategy will benefit from greater legislative involvement. The Commons and Lords can help help address the stark reality that no mandate for any specific form of Brexit (‘hard’ or ‘soft’) resulted from the 52-48% referendum which centred around a very simple ‘in-out’ question.
Here, Parliament can help try to ensure an exit from the EU that maintains high living standards and prosperity while, at the same time, delivers on the political need for stronger controls over immigration. This balancing act, which will be potentially difficult to strike given the EU’s commitment to the four freedoms of goods, people, capital, and services over borders, remains at the heart of the dilemmas May faces, and legislators can potentially assist her weigh up the negotiating trade-offs, while also help secure greater political legitimacy for any final deal.
A key reason why May has resisted stronger parliamentary involvement in the Brexit process, to date, is that it means that she will no longer be in such control which creates potentially multiple headaches for her.
Firstly, if the court decides legislation is needed, it increases the prospects of a delay in triggering Article 50 beyond the prime minister’s end-March deadline. This could be problematic for the government which wants to get any final, complex Brexit deal negotiated at a fast pace, by 2019, in advance of the scheduled Spring 2020 election.
May’s challenges could be biggest not in the Commons, but with pro-EU legislators in the Lords who are less susceptible to public opinion given that they hold unelected positions. Many in the Lords have already flagged concerns about Brexit, and several have warned the March deadline to trigger Article 50 may be impractical to meet if legislation is required.
Second, greater Parliamentary involvement in the process would mean there is also an increased chance of the United Kingdom opting for a ‘softer Brexit’. For instance, the Leader of the Opposition Jeremy Corbyn has asserted that, while he will not ultimately stand in the way of triggering Article 50, he and his party will try to ensure continued UK access to the European Single Market; guarantees on the safeguarding of UK consumer rights and the environment post-EU exit; no post-Brexit dilution of current EU workplace rights; and UK government pledges that it will pick up the tab for any EU capital investment lost by Brexit.
Objectives of this kind are problematic for May as she knows that Parliament could, in effect, try to tie her hands in negotiations with EU partners if it requires her to make goals such as ensuring a close relationship with the Single Market a top priority. This could come with a big price tag given the government will probably need to pay, post-Brexit, for continued access to the Single Market, while potentially undercutting her key priority to secure a clampdown on immigration.
Third, if the court rules legislation is needed to trigger Article 50 it raises prospects of a parliamentary vote to approve any final agreement with the EU. While the government has not conceded this, its position appears unsustainable given that the European Parliament will get to approve, or reject, any such deal.
Moreover, some legislators are also pushing for a public referendum too. Among them is former deputy prime minister Nick Clegg who asserts there should “be some means by which the British people can have a say on the final deal when the negotiations with the EU are finally completed in the years ahead”.
This could also cause problems for May as some polls now show a majority once again supports EU membership. If any such second referendum were to reject the terms of an exit deal, it could be a fatal political blow for the prime minister who has staked her credibility on delivering Brexit.
Given this tricky context, the court decision could also influence May’s decision about whether to engineer a snap election in 2017. The temptations could prove particularly strong if polls continue to show a double-digit lead for her Conservative Party over Labour. Elections are never without risk, but May could be significantly strengthened if she wins a mandate for her Brexit strategy, while potentially boosting her slim majority in the Commons.
Andrew Hammond is an associate at LSE IDEAS (the Centre for International Affairs, Diplomacy and Strategy) at the London School of Economics.