The High Court Brexit ruling has provided the Scottish Government with an opportunity

Written by Mandy Rhodes on 7 November 2016 in Editor's note

The High Court ruling underlines the chaos that has ensued since David Cameron called a referendum on the assumption that Remain would win

On Wednesday, leading politicians from across the UK nations will make their first attempt to find a common position on Brexit in what has become an increasingly convoluted journey towards the European out door.

Brexit Secretary David Davis, a leading Vote Leave cheerleader during the referendum campaign, will sit down with his counterparts from Scotland, Northern Ireland and Wales on the first Joint Ministerial Committee on European Negotiations.

The ghost at that feast will surely be last week’s High Court hearing, in which Davis’s government was hauled up to the dock and lost.


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The government had said the decision to leave the EU was taken by the people in the referendum on 23 June and that its executive powers, under the royal prerogative, were sufficient to give notice to the EU on behalf of the cabinet. It is this that was challenged in the courts and the government was overruled.

Key Leave politicians, like Davis, who argued the loudest that power must be wrested back from Brussels and given to Westminster, saw their hearty defence of parliamentary sovereignty upheld by three High Court judges. And they don’t like it up ‘em.

This was a hugely important constitutional decision which basically rejected the idea that the Prime Minister, Theresa May, could side-step parliament and tear the UK out of the EU without even offering the chance for MPs or indeed, unelected Lords, to consider the matter.

The judgement basically applied that same rationale used by Brexiteers, about where power should lie, as to who gets to make the decision on triggering Article 50, and in doing so, exposed a hypocrisy at the heart of Leave that the sovereignty of parliament only really matters to them when it falls in their favour.

Questions now abound about whether the referendum vote could be reversed or the process indefinitely stalled, and what of a further appeal and could the ultimate Brexit test, or parts thereof, be decided, ironically, in the European Court of Justice?

It’s a mess, and it underlines the chaos that has ensued since David Cameron called a referendum on the assumption that Remain would win.

Nigel Farage has said that he now fears that a “betrayal” is imminent and that parliamentarians may opt for a “half Brexit” or that it might even halt Brexit altogether. And while that appears unlikely, what with the uncertainty and the parliamentary arithmetic – adding together Labour, the SNP, Lib Dems and the Tories who voted Remain – who knows what could be possible?

By handing responsibility for initiating Brexit over to MPs, the judges have ventured on to constitutionally untested ground. And while the government has already indicated it will appeal the decision, it undoubtedly remains a huge personal setback for a PM who was unequivocal in her repeated assertion that ‘Brexit means Brexit’.

And while the court ruling may bring no more clarity to that rather strange pronouncement, it could force May to show MPs what Brexit actually does mean for her.

Regardless, the High Court judgement is the latest in a series of events indicative of the chaos and unpreparedness at the heart of the UK Government and its inconsistency in dealing with the Brexit fall-out that its party has wreaked on the UK.

In July, Theresa May flew to Scotland within days of becoming Prime Minister, to meet with Nicola Sturgeon for what was described as a “positive” meeting. The PM later said she was willing to listen and that her approach to Brexit would be open and flexible and that the Scottish Government would be fully involved.

Then last month, speaking on the first day of her party conference in Birmingham, she struck a less conciliatory tone when she warned: “I will never allow divisive nationalists to undermine the precious Union between the four nations of our United Kingdom.” And that: “We will negotiate as one United Kingdom and we will leave the European Union as one United Kingdom. There is no opt-out from Brexit.”

And remember, it is just two weeks since May hosted the first meeting of the Joint Ministerial Council since 2014 and although officials ahead of the meeting insisted she was ready to listen, she rejected, effectively, any alternative arrangements for Scotland or elsewhere. And offered the leaders of the devolved nations a ‘hotline’ to David Davis.

Sturgeon could hardly contain her anger when she described the talks as “frustrating” and accused the PM of “driving Scotland over a hard Brexit cliff”.

Sources close to the First Minister say the UK Government just has no plan and so it is against this increasingly fractious backdrop that one could forgive the Scottish Government’s Brexit minister, Mike Russell, for indulging in a wry smile as he sits across from David Davis at this week’s meeting and considers last week’s court ruling against him and what it could mean for Scotland.

The judgement undoubtedly strengthens the Scottish Government’s hand because the Scottish Parliament will now have the opportunity through convention to feed into the legislative process of triggering Article 50 rather than just opining from the side-lines.

Boris Johnson, prone to verbal infelicities, sometimes stumbles on a truth, such as when he said at the Spectator awards last week that: “Brexit means Brexit and we are going to make a titanic success of it.” Mike Russell, at Wednesday’s meeting, might want to argue that the High Court has just thrown the UK a lifeline to avoid going down with that ship.

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