I never thought I would get so fascinated with a UK Supreme Court decision, but I watched much of last week’s hearings with an interest which belied the profoundly boring content of the arguments. In addition to teaching us a lot about the UK unwritten constitution, it also demonstrated how constitutionally dysfunctional the UK is and has always been, to the point where the decision to be handed down in January could ultimately lead to Irish reunification, Scottish independence, who knows with Wales, and leaving little England to leave the EU by itself.
The case hinges on two fundamental constitutional questions. First, whether Parliament must legislate to invoke article 50, or whether it can be unilaterally invoked by the Prime Minister using Royal Prerogative. Second, must the devolved parliaments also give legislative consent to invoke Article 50?
For the first question, the Government argues that the Royal Prerogative, which includes the power to make and unmake international treaties, gives them the authority to invoke Article 50.
The claimants argue that while invoking Article 50 in itself would not change domestic law immediately, as night follows day, it will have a profound effect once the UK leaves the EU. Only Parliament can make and unmake laws. Because the EU law shapes domestic law, Parliament must therefore legislate to invoke Article 50. Royal Prerogative ends where affecting law begins.
As to the second question over requiring legislative consent from devolved parliaments, Attorney General for Scotland Richard Keen argued in favour of Parliamentary supremacy and absolute sovereignty of the Crown in Parliament, that the Scottish people were not sovereign, and had no right to be consulted on their constitutional future.
Arguing on behalf of the Scottish Government, Lord Advocate for Scotland James Wolffe held that while the UK government could invoke Article 50 without legislative consent, doing so would be in violation of the Sewell Convention. This convention, on statutory footing since the 2016 Scotland Act was passed, holds that the UK Parliament will not ‘normally’ legislate on devolved matters without legislative consent. How ‘normally’ is defined in this case is a matter for the court, who will decide whether it is mandatory. Nevertheless, Wolffe argued that invoking Article 50 without legislative consent would melt the consensual glue which has purportedly held the Union together.
It is almost certain that the court will uphold the appeal and rule that Parliament must be consulted, though to what degree we will learn when the decision is handed down. For the second question, either outcome will likely dissolve the Union.
The decision will likely fall somewhere in between categorically requiring legislative consent and upholding absolute UK parliamentary sovereignty. If it is closer to the former, expect the howls from Westminster and the Unionist press to be deafening. Given that the Scottish will not give consent, at least in the absence of a cast-iron guarantee that Scotland shall remain in the single market (impossible), it is entirely conceivable that Westminster would be forced to allow another independence referendum before the end of the negotiations which will allow Scotland to remain in the EU as an independent nation.
If the decision is closer to the latter, it will put to rest any notion that Scotland is an equal nation within the UK, or that Scotland’s voice will be heard, much less respected. There will no longer be a union, in that the UK would have so fundamentally violated basic conventions of partnership and collaboration that Scotland would hold a second independence referendum, with or without the consent of Westminster.
For Ireland, Brexit poses an existential threat to the Good Friday Accords, which are the basis of the peace process. During the arguments, lawyers for the claimants argued that the accords gave the Northern Irish a say over their constitutional future. Therefore, they must have a say over their status within the EU.
Loyalists in Northern Ireland are loyal to Scots Presbyterians, not to England. If Scotland leaves the Union, thus dissolving it, this could engender a fundamental rethink over the meaning of Unionism and whether now is the time to begin a debate over unification, which the Scots would be delighted to help inform. Given Nicola Sturgeon’s rapturous welcome in the Irish Seanad, her unequivocal support for not reimposing a north-south border, and their support for Scottish independence, this goes beyond mere fantasy.
Either way, the only thing that is certain is that the UK will not survive Brexit in the same form.
This is compounded by the fact that the UK government is utterly oblivious to what a train wreck the negotiations with the EU are likely to be. Theresa May continues to talk about getting the ‘best deal’ for the UK with ‘access’ to the single market, when clearly there will never be a deal which is better than the UK currently enjoys.The Europeans have been crystal clear about two things: no negotiation without notification, and no division of the four freedoms: people, goods, services, and capital. Also, no matter ‘plan’ the Brexiteers come up with it, the agenda has already been set by the EU. Among the items: the divorce bill, the status of EU citizens living in the UK and vice-versa, and unique situations such as Scotland and Northern Ireland who it is understood will take part in this part of the negotiations.
Nowhere on the agenda is any talk of a new deal, which would likely only able to be arranged once the what is left of the UK has exited the EU. Boris Johnson and other Tories are harking back to the era of swashbuckling gunboat diplomacy in thinking countries will be lining up to do trade deals with the UK. This ignores the fact that no country will be remotely interested in serious negotiation with the UK until its trading status with the EU is resolved, as EU market access is a major reason why many have invested in the UK.
Only time will tell what will emerge from the EU talks in 2019, but the British isles will never be the same constitutionally. While Scotland as a sovereign country became ‘extinct’ in 1707, 2019 could well see the extinction of the UK and the remnants of the British Empire.