Brexit and the supreme court judgement: a simmering political and constitutional crisis

The UK’s Supreme Court made a clear and expected judgment today – by a majority of eight justices to three – that a bill must go to Parliament before the UK government can trigger Article 50, the formal process for leaving the European Union.

The judgment reasserted the constitutional rights of Parliament over the executive. However, it gave less cheer to the devolved administrations of Scotland, Wales and Northern Ireland. The justices did not, in any way, give a veto over, or a direct say in, the Article 50 decision (other than through their MPs at Westminster) despite legal representations arguing for just that.

The judgment is certainly welcome as a defence of parliamentary democracy in the United Kingdom. Yet the Labour Party, the largest opposition party at Westminster, remains committed to its line that it will not oppose or delay the triggering of Article 50.

Labour will aim to put down amendments to the government’s Article 50 bill to preserve social and environmental rights. But with Labour’s continuing acquiescence in Brexit, despite the expectation of some Labour MPs rebelling on the Article 50 vote, there is currently little likelihood that Article 50 will be delayed beyond the end of March, let alone derailed.

The Liberal Democrats will vote against Article 50 unless a second referendum is granted on the Brexit deal. The Scottish National Party (SNP), the third-largest party at Westminster with 54 MPs, will also vote against. The SNP has said that they will make fifty amendments to the Article 50 legislation and, unless all pass, they will oppose triggering the article.

But it is the lack of effective opposition from Labour to Brexit on the terms laid out by Prime Minister Theresa May last week – a Canada-style trade deal with the European Union – which means that the UK is facing the complex and damaging Brexit process without any serious debate or difference between the two largest parties. The 48% of UK voters who voted to remain in the EU have little representation at Westminster.

So while the Supreme Court has defended parliamentary democracy, the Brexit stance of the internally divided, demoralised Labour MPs and Labour Party means there is a broad absence of effective opposition at a defining moment for the UK.

Together with this simmering democratic crisis goes a simmering constitutional crisis. The Scotland Act 2016 incorporates the so-called Sewel Convention, which states that Westminster will not ‘normally’ legislate in devolved areas of competence without the agreement of the Scottish Parliament.

Today’s judgment by the Supreme Court ruled, as many anticipated, that the Sewel Convention is a political convention, not a legal requirement. The Scottish Parliament does not have a right to veto Brexit, nor does Westminster have to consult it. Nicola Sturgeon, Scotland’s First Minister, said ahead of the judgment that she would nevertheless give the Scottish Parliament a vote on Article 50. But now it will have no legal force.

So this judgment sets out in black and white the dominant constitutional role and power of Westminster. Politically, its impact is likely to be large. It gives substantial grist to the mill of those who argue that Scotland’s devolved powers and status are much weaker than they look at first glance. And it will give a strong boost to those arguing for an early independence referendum in the context of Brexit.

In response to the judgment, Nicola Sturgeon came out with a very strong statement that took Scotland closer to that second referendum:  “It is becoming clearer by the day that Scotland’s voice is simply not being heard or listened to within the UK […] the very foundations of the devolution settlement that are supposed to protect our interests – such as the statutory embedding of the Sewel Convention – are being shown to be worthless.” She went on: “This raises fundamental issues above and beyond that of EU membership. Is Scotland content for our future to be dictated by an increasingly right-wing Westminster government […] or is it better that we take our future into our own hands? It is becoming ever clearer that this is a choice Scotland must make.”

Northern Ireland, facing its own serious challenges, with new elections due in March after the recent collapse of its power-sharing administration and with Brexit posing new problems over its open border and relations with the Republic of Ireland, also gets no say in triggering Brexit. And in Wales, where the population did narrowly vote to leave the EU, lack of any direct say will still not go down well.

Brexit was always likely to lead to a political and constitutional crisis in the UK. With the Supreme Court judgment, and the reaction of the UK’s political parties, that crisis has now shifted up a notch.