As I write this, the first battle in the war over Brexit is about to get underway. The first issue that has come up is whether the Prime Minister has the right to trigger Article 50, the clause under which a member state notifies its decision to leave the European Union, without the Parliament’s approval. Article 50 states that any member state may leave “in accordance with its own constitutional requirements,” an undefined term that has allowed both sides to put forth their own rival interpretations.
The government insists that it does have such right under the system of ‘Royal Prerogatives’ but there are five groups challenging this view and the case is about to be heard in London’s High Court. By the time this is in print the hearing will be over, although judgment is likely to be reserved. The five groups represent citizens of England, Wales, Scotland and Northern Ireland as well as British expats living in Europe, of which there are about one-and-a-half-million. There are in all eight Queen’s Counsel (QCs) representing these groups, some privately and some ‘crowdfunded’, among them QCs representing the very prestigious law firm Mishcon de Reya, which had handled Princess Diana’s divorce case on her behalf.
Lawyers of Mishcon de Reya have received death threats, and some of the firms representing those arguing that government cannot move under Article 50 without the approval of Parliament, have said that the servers of their computers had crashed. Online abuse of these lawyers, one understands, is rampant. Skullduggery is afoot, some in forms much more sophisticated than the use of the danda, but the idea is the same. In fact, so heavily charged is the atmosphere that at a preliminary hearing, it was ordered that the identity of some of the claimants be kept secret to ensure their safety. The Brexit Brigade, consisting as it does of the right wing extremists of all hues and colours, is capable of anything. The likes of Gulloo Butt would be well advised to apply for work visas to Britain at the moment, for the chances of them being accepted and allowed to come to the UK for providing such services as they excel in, would be high. It may be added here that a similar claim has been heard in Northern Ireland which would prevent withdrawal from the EU without further consultation. That judgment has also been reserved.
Of course, the hearing in the High Court is not expected to end the matter. Whoever loses is almost bound to go up in appeal, but given the Prime Minister’s announcement that the notification under Article 50 to leave the EU would be filed by March 2017, provisions have been made for an appeal to be filed directly to the Supreme Court, sidestepping the Court of Appeal. There is, of course, also the possibility that the honourable judges may refer the matter to the European Union Court of Justice in Luxembourg seeking clarification on what exactly Article 50 means by the phrase “in accordance with its own constitutional requirements,” and that would be the unkindest cut of all. This would mean that an issue basically dealing with the rights of the British Parliament would be decided by Europe which would make many Brexiters throw up in buckets.
The hearing follows what has been a fiery exchange in Parliament over the Brexit procedure during which the Labour Party has given the government a list of 170 questions over Brexit, the handling of which by the government was, Labour alleged with some justification, a ‘shambles’. The position of the government itself in its stand over how it intends to move under Article 50, has been weakened by the fact that quite a few Tory MPs have now come out to say that it is wrong for the government to deny Parliament a vote on this subject. The issue has gained such importance that in what amounts to at least a partial U-turn, Prime Minister Theresa May has accepted the need to have “full and transparent” parliamentary scrutiny before triggering Brexit. In a last-minute concession, the government accepted a Labour motion calling for the MPs to have more say over the strategy for leaving the EU before Article 50 is triggered by the end of March. But it has not yet accepted the idea of giving Parliament a full vote on the issue. The government was forced to make this concession as it faced its first defeat over a motion with many Tory MPs indicating that they were prepared to vote with Labour to demand greater public debate over the Brexit negotiating strategy.
Although the concession does not go as far as specifying that MPs should get a formal vote on Article 50 or any Brexit deal, it does mean there will have to be a substantive parliamentary debate on government’s strategy before the UK embarks on Brexit. One Tory MP said, this meant the Commons would have to broadly approve the negotiating position before Article 50 is invoked. But even that means little, for the real issue which is the ultimate deal that is offered by the EU – and that final deal has to be ratified by the remaining 28 countries of the EU unanimously. That the 28 will all approve the UK’s negotiating position at the moment seems as likely as Karachi airport being shut down by a snow blizzard as you read this! But delusion is a wonderful thing, even if it is destined to be temporary. After all, in a transitory world, nothing is permanent. •