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After the Supreme Court, the phoney war is over; the Battle of Brexit begins.

WITH this week’s landmark ruling by the Supreme Court, and Theresa May’s Lancaster House speech last week, the phoney war is over and the Battle of Brexit is about to begin. We should thank the Law Lords for drafting a landmark ruling that will be studied by constitutionalists for centuries. They defied the death threats and tabloid taunts of “enemies of the people” and upheld the rights of the people, delivering a textbook account of what Westminster parliamentary democracy means.

The Supreme Court judgment confirmed that the Prime Minister and the Brexiters had launched, in effect, an executive coup by attempting to push through hard Brexit under royal prerogative – the pre-democratic powers of absolutist monarchy. That they didn’t get away with it is down to the Law Lords and Gina Miller, the Guyana-born City fund manager who brought the original action and who is invariably depicted in the tabloid press with a sneer of contempt on her lips. It is to Parliament’s shame that it was left to a private citizen, and not MPs themselves, to fight for the sovereignty of parliament.

Mrs May’s dramatic announcement of a White Paper on Brexit that she has spent six months refusing to consider is a sign that the coup has been repulsed, at least for now. The tanks are back in the barracks. But it now requires MPs to exercise the authority handed (back) to them by the court. Do they have the cojones ? They’re giving a pretty good imitation of headless chickens, at least on the Labour benches. You have the impression the Labour leader, Jeremy Corbyn, would rather not have had to go to the bother of challenging Brexit.


Of course, in theory, Westminster could halt Brexit in its tracks blocking Article 50 and halting Brexit altogether; MPs have that power. The Supreme Court made clear that the June referendum was, as the Government had said, purely advisory. Only Parliament has the authority to invoke the fateful clause in the Lisbon Treaty that triggers Brexit.

The Liberal Democrats, the SNP and an indeterminate number of Labour and Tory MPs are determined to vote against Article 50, but they won’t succeed.  It is a futile, if necessary gesture.  Labour has already said it will not impede Article 50 and despite mass resignations, including from the Labour whips office, this means Mrs May will get her short bill.

Whether any amendments are tagged on is another matter.  Attempts will hopefully be make to keep Britain in the single market, but the processes by which the Commons amends short bills are arcane and would require considerable determination by the opposition – something lacking on the Labour benches.  The House of Lords could block Article 50 but, since the Parliament Acts of 1911, it can only delay the process, not impede it.

After Article 50, attention will shift to the Great Repeal Bill, which is to be tabled sometime in the next UK parliamentary session beginning in May. This will be a detailed piece of legislation repealing the European Communities Act of 1972 that took us into the EEC. The Government says that the thousands of directives and regulations from Brussels, on nuclear safety, the environment, workers rights, trading standards and, yes, bent bananas, will simply be imported onto the UK statute book as they stand. It will be as if Britain were still in the EU.

You might wonder why the Government is so keen on leaving the EU if it’s going to keep its laws. But Mrs May wants to strike a quick free trade deal, giving Britain continued access to the single market, without having to accept the “four freedoms” of labour, capital, services and goods. This is the “have-cake-and-eat-it model” strategy revealed in those notes for the business Secretary Greg Clark inadvertently revealed to press photographers in November. The Prime Minister believes that the EU will have no grounds for denying continuing free trade since there is “regulatory equivalence”. British toasters shall not be denied their freedom of movement in Europe.

The 27 member states of the EU will beg to differ. They’ll argue that, if you want to be in this free trading club, you have to abide by the Brussels rules and accept the arbitration of the European Court of Justice. The ECJ has nothing to do with the Human Rights Act and is essentially the umpire in disputes over those economic freedoms of labour, capital, goods and services. As with any free trade zone, goods like toasters have to be EU-approved to go on sale without lots of paperwork or tariffs.

They shall not turn down our toasters.  They will not black ball our bankers. We will fight on their beaches, and in their courts and parliaments so that British goods and services shall continue to  be available in the European Single Market even though we are well out of it, and will refuse to accept any of its rules  Mrs May will enlist the bully in the White House to put the frighteners on the cowering Europeans.

And if they don’t agree, we’ll cut off our own noses by trying to turn Britain into a low tax, low regulation tax haven off the shores of Europe.  Never in the history of trade has a country sought to thrive by cutting itself off from its major markets. But at least, the Law Lords of the Supreme Court did their best.


About @iainmacwhirter

I'm a columnist for the Herald. Author of "Road to Referendum" and "Disunited Kingdom". Was a BBC TV and radio presenter for 25 years - "Westminster Live" and "Holyrood Live" mainly. Spent time as columnist for The Observer, Guardian, New Statesman. Former Rector of Edinburgh University. Live in Edinburgh and spend a lot of time in the French Pyrenees. Will that do?


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