Simon Heffer:
Tomorrow, the Supreme Court will hear the Government’s appeal against the High Court’s decision to prevent the Royal Prerogative being used to trigger Article 50 and start the process of our leaving the European Union. I fear the decision to appeal was profoundly wrong: not because I have changed my mind about Brexit, or believe judges should run Britain, but because, having read their judgment, I don’t believe the judges had any choice but to conclude what they did. I shall be amazed if the appeal succeeds.
Although Mrs May has led the country well, some of her ministerial choices have proved poor. One is the Attorney-General, Jeremy Wright, whose cack-handed conduct of the Government’s case was not least why it failed. Neither I, nor colleagues of his to whom I have spoken, expect things to improve this week. I trust Mrs May will learn the lesson of this debacle and appoint a serious lawyer to Mr Wright’s job. The demands on the Government’s legal expertise are far from over.
The appeal opens up the proverbial can of worms. The Scottish and Welsh assemblies have won the right to intervene in the case. There is even the suggestion that the Supreme Court may not feel equal to deciding whether the Government can or cannot use the Royal Prerogative, and may refer it to the European Court of Justice. If it did, that could take up to eight months. Given the stratospheric level of legal expertise among the 11 members of the Supreme Court, it beggars belief that it cannot decide this matter without referring it on. Indeed, to refer it to European authority with such a delay would appear to confirm the prejudices of some ill-informed people that the judiciary is determined to thwart the democratic will, which would hardly be healthy or necessary.
I hope, forlornly, that Mr Wright will tell the court that the Government is withdrawing its appeal, in acknowledgment of the nearinevitable outcome, and instead put a Bill through Parliament to trigger Article 50. Such a Bill would sail through the Commons, given how many Labour MPs are reluctant to oppose what they know many of their constituents believe.
Mrs May has promised the House of Lords that there will be no reforms of its membership for the moment, apparently in the hope of its supporting such a Bill. If it does not, she could reintroduce it early in the next session of Parliament and make it subject to the Parliament Act, whereby it becomes law in any case after a second defeat by the Lords. However, such a Bill cannot be enacted for 12 months, which means missing the deadline Mrs May has announced for beginning the process of leaving by more than a year.
Therefore, any obstruction by the Lords risks triggering a general election, for by no other means can Mrs May confirm her mandate to act as the people have decreed. Under the Fixed Term Parliaments Act – which should be repealed immediately – she would have to engineer the dissolution of Parliament with the help of Labour votes. This would perplex Mr Corbyn: Labour is far behind in the polls and Ukip is back in business. Labour would probably face its worst result since the Thirties if it had to fight an election soon. But refusing to fight would make it look even worse.
The Scottish request to intervene in the Supreme Court hearing may, however, turn out to be the silver lining in the cloud of the Government’s poor decision to launch this appeal. Most constitutional lawyers find it impossible to believe that the Supreme Court would in effect create a federal United Kingdom by giving the Scottish Parliament some sort of veto over the triggering of Article 50. Therefore, this aggressive move could be another important step in the gradual decline of Nicola Sturgeon, whose unduly long honeymoon period is most definitely over and who is overreaching herself.
Scottish nationalists talk of “two parliaments” in London and Edinburgh as though the institutions were equal. They aren’t. Scotland is a part of the United Kingdom and the institution at Holyrood is subject to the ultimate sovereignty of the United Kingdom Parliament at Westminster. It has no more right to veto something within the powers of that sovereign Parliament (and the High Court, in its judgment against the use of the Prerogative, made it quite clear that Brexit was in its opinion within those powers) than Essex county council does. It has been part of Miss Sturgeon’s manipulative strategy, since her party lost the independence referendum in 2014, to talk and act as though Scotland is already sovereign. It isn’t, and millions of Scots still don’t want it to be, not least because of their dislike of her.
Miss Sturgeon’s party is split over Brexit – something she attempts to dismiss, in the manner that she dismisses questions of Scotland’s post-independence solvency, or even what currency it would use – and nearly 40 per cent of Scots voted leave on June 23. Scotland may succeed in securing the right to be consulted, but consultation means just that: it is not the right to dictate.
I don’t blame Remainers all over our kingdom for fighting to maintain the status quo. Their self-interest will take a massive knock when we leave, and to a minority, avoiding that is more important than democracy. But the EU they want to remain in is changing rapidly, and becoming less and less stable. Tonight could well see the fall of the Italian government, if the country’s constitutional referendum goes against Mr Renzi, the prime minister, which can only accelerate Italy’s banking crisis. Also, Austria may be about to elect a neo-fascist as its head of state, and the odds on Marine Le Pen become president of France are being slashed. For us, keeping calm and carrying on with Brexit is the best and only option – and, as I suspect the Supreme Court will tell us, this can only be done by Parliament.