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January 25, 2017

Good news for the British government

This was a true Solomonic ruling by the UK supreme court because it upholds an importance principle of British constitutional law while not going so far as to impede the underlying Brexit process itself. For the British government this was the second-best conceivable outcome - short of an outright victory. The ruling upholds the High Court's decision in November that the government must table Brexit legislation. But the justices have shied away from imposing three potentially serious obstacles: allowing the devolved legislatures of Scotland, Northern Ireland, and Wales, to veto Brexit would have been the most important one; they also did not impose a requirement that the UK parliament undo the 1972 European Communities Act as a prerequisite to triggering Article 50. This was proposed by Lady Hale, the court's deputy president, in a speech. And there was no reference to the European Court of Justice needing to clarify the meaning of "constitutional requirements" in Article 50, as some lawyers have argued (implausibly to us), or to clarify whether the Article 50 process is reversible once started and, if so, under what procedure. 

The ruling means that the government will now introduce legislation, which it had prepared in anticipation of it. The government will formally table it tomorrow. The Guardian quotes Brexit secretary David Davis as saying it "will be the most straight-forward bill possible", which suggests that it will be short. Government lawyers were still scrutinising the 97-page long judgement, but they are confident that they will be able to proceed without delay.

So, will it pass? Of course it will, but there will be attempts to introduce amendments, notably to stay in the single market which is not really a decision for the UK parliament to make. At most it can ask the government to adopt a negotiating stance to seek an arrangement of membership of the EEA - something the government said it would not do, and something the EU would no longer offer to the UK given the political developments since the Brexit referendum. So this is a bit of a phantom debate - not helped by the repeated idiotic demands by Jeremy Corbyn, who keeps on demanding "access to the single market" - a concept that does not exist. You are either member of it, or you are not. In the latter case, you can trade with the EU under a variety of possible arrangements.

It is important to cut through the noise - lots of "he said, she said" type of news reporting this morning - and to conclude that given the state of the Labour Party right now, there is no chance of an anti-Brexit majority in the House of Commons. The Labour Leadership has imposed a three-line whip on its MPs to vote in favour of Brexit, and only around 60 out of 229 Labour MPs said they would defy the whip. Some Labour MPs may even resign front bench positions. The Party will table some amendments, but we cannot see that these will have any chance of being adopted. If there were really a serious attempt by rebels on both sides of the House to force the government to seek EEA membership, this would risk triggering an election that could result in the decimation of the Labour party. The logic of both British politics and the Article 50 process under EU law is that parliamentary involvement is rather limited. We agree with the arguments of the three dissenting justices: under EU law, the Article 50 process is a matter of negotiation between the European Council and the UK government - this is not legislation that can be fine-tuned by any side. 

We also agree with the assessment by Peter Walker and Anushka Asthana in the Guardian that this ruling will have little effect, though they acknowledge that the end-March deadline now looks a little tight (but even a small delay of a month or two will not matter a great deal). The House of Lords may also try to influence the process but there is no way that the unelected Lords would vote no, or even hold up the process beyond what is necessary for them to do their job. They also make the point that MPs will have a final vote on the deal, but again this is not a very useful right because a rejection of the deal means Brexit without a deal, as we have also said. The possibility of Article 50 process being frustrated mid-way is a theoretical debate. Most contributions to this debate either fail to understands the intricacies of EU law, or of UK politics, or both. 

The only aspect of Brexit that is genuinely up for grabs is the length and nature of the interim agreement. We continue to argue that it will take at least three years, possibly up to five, and that the easiest option would be continued membership of the customs union, or a time-limited quick-and-dirty off-the-shelf trade deal, to be followed by a more comprehensive so-called "mixed agreement" later on. 

Among the commentary we saw yesterday there was a lot about whether the Supreme Court was right or wrong in its judgement. It is worth noting that there was anger on both sides. The reaction from Nicola Sturgeon, Scotland's first minister, was one of unbridled fury. The only way to extricate Scotland from Brexit now is through outright independence, an option which Nicola Sturgeon still keeps open. She said yesterday that the ruling would make such a vote more probable.

Andrew Duff made an important point in a comment on how the EU sees the Brexit process. We agree with him that this is where we need to look, and that this is where the greatest danger lurks, not from the UK parliament. Theresa May's negotiating position may make sense from a UK position, but it is a very difficult one for the EU:

"In pitching for Britain's partial membership of the customs union, the prime minister may have been trying to simplify things for the sake of her riven government and party. But she has complicated matters enormously for the EU27. Full membership of the customs union would mean the tidy adoption of the EU's common commercial policy and external tariffs. A bespoke "completely new customs agreement", even becoming "an associate member of the Customs Union in some way", will force the 27 to open up for review their own internal pact, thereby exposing competing interests. The effect of Brexit is to throw up in the air the EU's own internal market settlement. Whereas the EU28 could act as a trading bloc when it negotiated a deal with Canada, the disintegration of the bloc and the reformation of the 27 to negotiate against the UK as a third country, formerly the EU's second largest economy, is a different matter altogether."

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