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Brexit and Beyond
Reading the Brexit Tea Leaves

A British court ruled that Prime Minister Theresa May cannot trigger Article 50 on her own. The BBC:

Parliament must vote on whether the UK can start the process of leaving the EU, the High Court has ruled.

This means the government cannot trigger Article 50 of the Lisbon Treaty – beginning formal exit negotiations with the EU – on its own.

Theresa May says the referendum – and existing ministerial powers – mean MPs do not need to vote, but campaigners called this unconstitutional.

The government is appealing, with a further hearing expected next month.

If the decision is upheld on appeal, it means that Remain MPs will have a say on when and whether to trigger Article 50. The expectation is that these MPs would hold off on triggering Article 50 until they felt Brexit negotiations had concluded satisfactorily, i.e. in a way that didn’t totally cut the UK off from the European market.

Will an injection of parliamentary politics force May to back off her hardline stance? (Earlier this week, the big Brexit news was that May is preparing to meet Hungarian Prime Minister Viktor Orbán.) Only time will tell, but many already believe May’s rhetoric is just that. Her government is still dealing with fallout from news that the carmaker Nissan received “secret” reassurances about the kind of access to European markets it can expect post-Brexit.

The only thing which can be said with any confidence is that London’s approach to Brexit remains scattershot; it’s foolish to read too much into any particular meeting or piece of news. 10 Downing probably doesn’t know much better how this will work out than anyone else does.

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  • Andrew Allison

    This post is incoherent. First, the implications of Parliament negating the will of the people clearly expressed in a referendum are mind-boggling. Would Parliament really dare to do so? Second, the EU has made it clear that there will be no Brexit negotiations until Article 50 is invoked.

    • Observe&Report

      The House of Commons wouldn’t dare, but the unelected House of Lords, being overwhelmingly pro-EU, just might.

      • Andrew Allison

        The Lords lack the power to veto a bill (https://www.parliament.uk/about/how/laws/parliamentacts/), and since the institution is on life-support, would be foolish to flout the will of the people by suspending a Bill.

        • Observe&Report

          At this point, I may as well out myself as British.

          Fortunately, you are correct. The Lords can’t veto bills outright, but they do have the power to add amendments to bills they reject and send them back to the Commons for a second or even a third round of debate and voting. If the Lords rejects a bill a third term, only then can the Commons bypass the Lords and make it law with one more vote followed by Royal Assent (ceremonial rubber-stamping by the Queen).

          That whole process with multiple rounds of debating, amending, and voting can take months and months, so I wouldn’t put it past the Lords to delay and water down the terms of Brexit as much as possible to try to neutralise its impact.

          • f1b0nacc1

            Your analysis is spot on, but I wonder if the Lords might not quail when faced with the potential consequences of doing so. Remember that with Corbyn leading Labour, there is virtually no chance of a Labour government for at least the next 5-10 years, so anything the Lords do will leave them pretty much at the mercy of the Tories. The situation might be considered similar to the aftermath of the Khaki Election, when the Lords attempted to stymie a raft of social reforms, only to back down in the face of a determined effort by Commons (supported by the King, to be sure) that would have watered down the Lords, rendering it irrelevant. It isn’t difficult to imagine the Tories using such actions by the Lords to grab a popular bit of populism and take revenge. I suspect (and to be sure I have no way to be confident that I am right about this), that the Lords wouldn’t take the institutional risk.

          • Observe&Report

            This ruling is certainly a wild card, and it’s certainly likely that the Lords won’t dare thwart brexit outright. But the real problem – strange though it may sound – is not whether a parliamentary vote should take place on triggering article 50, but what form the vote should take.

            If the government loses their appeal, they would either have to hold a yes/no vote on triggering article 50 or introduce an actual piece of legislation authorising the government to do it. The former would be much simpler and quicker, and would be difficult for the elected Commons to block, let alone the unelected Lords.

            The latter, however, would allow both houses of parliament to dictate the government’s negotiating position – should we try to remain in the single market and submit to free movement of peoples as well as keep paying into the EU budget, or do we go for a “hard brexit” leaving both the EU and the single market? This would make brexit much easier to delay and obstruct, and would allow pro-EU Lords members to pay lip-service to respecting the referendum result whilst chipping away at its substance until it’s a brexit in name only.

            On the surface, it’s rather ironic that this ruling favours parliamentary sovereignty given that it was one of the key issues in the referendum. But of course, the argument was for a return of sovereignty to a parliament whose authority derives from the people of the UK. Presently, most of its power is superceded by the power of unelected and unaccountable EU bureaucrats, and now it seems parliament might get one last chance to keep it that way.

            I’m still hopeful that democracy will win, and the apocalyptic warnings about a “hard brexit” sound a lot like the empty doom-mongering that was peddled by remain campaigners before the referendum. But I wouldn’t underestimate the amount of pro-EU sentiment in the Lords, or their willingness to put their remaining credibility on the line to keep us in.

          • f1b0nacc1

            I absolutely agree with your analysis. I would suggest that a simple up/down vote on Article 50 would be the best tactical choice for the government, as it would put Labour in the uncomfortable position of attempting to resolve their own civil war over it (not that the Tories don’t have one of their own, but for the time being at least, they have been able to paper over the cracks) while at the same time coalescing behind a single platform. Given Corbyn’s rather mixed views on the subject, as well as his extremely weak standing with the PLP, I suggest that this tactic would be an outstanding choice for the Tories if they wished to do further mischief.
            One of my daily indulgences is to read the Guardian, with special emphasis on CIF. Nothing like it here in the States, and it is always good for a laugh…

          • Observe&Report

            My equivalent indulgence is Al Jazeera’s opinion section. Occasionally, a genuinely informative piece will come along, but most of what they post makes me want to burst out laughing.

          • Andrew Allison

            The first question is whether May needs to get Parliamentary approval to invoke Article 50. If so, it’s a simple up-down vote (any attempt to add conditions will be rejected by the EU, which has made it clear that there will be no negotiation before invocation, if not by Parliament).
            If and when Article 50 is invoked, the negotiations will be between the EU and the British government. Again, Parliament can either accept or reject, but not amend, any resulting agreement. Rejecting it would be madness because two years after invoking Article 50 Britain is out of the EU, agreement or not, and any agreement will be better than none. The Lords can delay a bill but, in this case, that’s all they can do. My thesis regarding the risk to the institution of being seen to be simply obstructionist, particularly in the event of an exit with no agreement, stands.

          • Observe&Report

            Once Article 50 is triggered, the negotiations will indeed be between the government and the EU. The issue is about whether Parliament needs to approve triggering Article 50 in the first place, and how it should do so.

            The obvious, commonsense way is exactly as you say: a simple up-down vote. Unfortunately, it is still possible that the UK Supreme Court may rule that the government must not only seek Parliament’s approval, but enshrine the power to trigger Article 50 in law, much as the government enshrined into law the hokding of the original referendum. That WOULD require a piece of actual legislation, with all the amendments and obstructionism that that would entail.

            Any conditions attached would be about forcing the government to take a particular negotiating stance before allowing it to trigger Article 50, requiring it to prioritise this or that (like retaining single market). My biggest concern is the cover it would provide for the largely pro-EU Lords to pay lip-service to honouring brexit whilst quietly undermining its impact.

            At this stage, our respective theses are equally possible, and we won’t know more until the final ruling in December. But I’m hoping your take on the situation ends up being the correct one.

  • J K Brown

    The British people are having the fact that they, The People, are not sovereign, but rather Parliament is, shoved in their faces. How might they react to this fact, but one left dormant in stark enforcement?

    The French were shown their place in the actions of the government after the terrorist attacks.

    Of course, in America, our “betters” ignore The People as sovereign and such is an element in the current election.

    Perhaps the genie will go back in the bottle, but the illusion has been broken.

    • Jim__L

      Question to the courts of most Western countries from the populations that they serve: “Just where the h**l do you get off, anyway?”

      I don’t think those courts could provide an answer that would not get them justifiably lynched.

  • FriendlyGoat

    Even with the 52-48 vote, I have never believed any full Brexit will actually take place. The whole thing may never get off the ground due to matters like this Parliament thing, may be “negotiated” for years meaning that nothing is happening in years of talks, or may be a partial and symbolic “leave” that mostly amounts to a “stay” for economic matters. The reason I think this is that Brexit does not make any sense for business interests anywhere.

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