The Corner

Brexit’s Day in Court

The first stage of leaving the EU is to file a notice to quit under Article 50 of the EU Treaty. This triggers a two-year period in which the terms of the divorce must be worked out, an ambitious enough goal as it is without the additional complication of trying to put together a free trade agreement with the EU (or at least a transitional agreement). And that’s just one reason why Prime Minister Theresa May was, in my view, if not the editors’, so ill-advised to opt for a ‘hard Brexit’ rather than the off-the-shelf solution (if it were to be available) of membership of the EEA (European Economic Area – ‘the Norway option’, or some variant thereof), a solution, what’s more, that would have allowed the UK to cut free trade deals with other countries (if the UK were to remain in the EU’s Customs Union, that power would have, as the editors rightly pointed out, have been denied it, but the EEA is not the same as the Customs Union).

The referendum that opted for Brexit was only advisory. It was a statement of the voters’ will, but not something that was binding on Parliament (which was, and is, pro-Remain). Who then had the power to press the Article 50 button? Could Mrs. May, relying on her treaty-making powers do so, or would Parliament have to sign off first? The law in this area is highly complex, as Iain Murray demonstrates here. Its complexity, at least partly, is a consequence of the way that the proto-EU’s legal process was woven into the UK’s legal system in 1972: it was not a  natural fit then. It is not a natural fit now. Brexit, yes please.

In any event, as Iain reports, the UK’s Supreme Court has now ruled that Parliament must vote on the decision to trigger Article 50. My guess is that, after some lively debate, it will vote to approve it. To do otherwise would be too politically dangerous for too many MPs, and too constitutionally dangerous for the heavily Bremainer (and unelected) House of Lords.

Once Article 50 is triggered, the negotiations with the rest of the EU will begin. That’ll be handled by the executive, but (The Guardian explains) Brexit minister David Davis has “told MPs there would be plenty of opportunities for MPs to scrutinise the Brexit process and “many, many, many votes” on it.”

The Guardian notes, however, “that it is unclear what changes might come from this. Davis insisted that the basic premise of Brexit involving departure from the EU’s single market and customs union was not up for debate.”

The idea that the ‘basic premise of Brexit” must involve quitting the Single Market (the Customs Union is a different matter) would have surprised quite a few of those who voted for Brexit, and with good reason.

Davis:

“I’m afraid it’s very difficult to see how you can leave the European Union and still stay inside the single market, with all the commitments that go with that.”

Not seen from Oslo, it isn’t.

 

 
 

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