On November 3, at 10am, the Brexit saga took a rather unexpected turn when a collegium of England’s most senior judges ruled that the government of Theresa May cannot legally quit the European Union by just curtly serving their divorce papers upon Brussels. The High Court’s findings may ironically even lead to a European Court of Justice ruling on the matter.
Twenty-seven European governments and the English public were left speechless. Within moments, the British pound appreciated by six per cent, propelled by what the markets perceived as tremendously good news. Brexit seemed in question and UKIP supporters and ultra-conservative Brexit-campaigners decried the ruling as the “coup of the establishment”, threatening to take their discontent to the streets.
How did this all come about?
As we all know, on June 23, a majority of British citizens decided it was time to put some distance between them and the European continent: refugees from war-ravaged countries were pouring into Europe in unprecedented numbers, rural tranquillity was ever more disturbed by a Babylonian confusion of voices and habits, and life beyond the garden fences looked increasingly unfamiliar. Brexit seemed a solution worth voting for.
The nitty-gritty of how best to untangle the UK from the threats of the continent without inflicting unnecessary economic pain for all would be left to professionals – the ministers, their advisers and the MPs – the elected representatives of the public in Parliament.
The strategy put forward by the new government overseeing Brexit was pleasingly simple: “Brexit means Brexit”. Indeed, this is what many had voted for, and yet, wasn’t it time now for some more detailed explanation to the expectant public of what Brexit could mean?
Dier dos Santos, an English hairdresser from Spain, was worried. The principle of free movement of labour within the EU had meant that he, like four million fellow Europeans in the UK, could put up shop wherever their trade would flourish best. All of a sudden, dos Santos’ English coiffeur salon was located in hostile territory, his status up in the air. He thought it might be time to consult a lawyer.
At about the same time, a group of British citizens from Gibraltar started to feel anxious too. Their position at the coccyx of Spain looked suddenly very precarious. They set up a crowd-funding operation to hire some really good lawyers to help them examine whether a UK referendum could possibly be sufficient justification for them losing all rights and privileges as European citizens.
Soon, others joined in, and even the Welsh and Scottish parliaments started to get interested. They, after all, represented an electorate that had overwhelmingly voted to firmly remain inside Europe.
Gina Miller, a London-based hedge fund manager, understood that with new trade barriers soon being erected and markets getting increasingly volatile, she could be in for a killing, making money like never before. But she felt that for the few to profit from the economic damage to the many couldn’t be quite right, so she too decided to have a chat with a group of lawyers beforehand.
The questions she put forward started to interest them: Prime Minister Theresa May has declared her intention to notify the European Union about the UK’s unconditional and irrevocable withdrawal by the end of March 2017. According to EU rules, the UK has a two-year time period to negotiate a new bilateral treaty if she wishes to do so. If not, or if she failed to secure a new arrangement, the exit would take effect after two years regardless.
All of a sudden, Dier dos Santos’ English coiffeur salon was located in hostile territory, his status up in the air. He thought it might be time to consult a lawyer
In relation to any other European country, the UK then would be something as sovereign, free and independent as the People’s Republic of North Korea.
“Is Theresa May, or anyone in her government constitutionally allowed to take such a step without an Act of Parliament?” Ms Miller asked her lawyers. They realised that she may have a point.
It soon became apparent that the questions raised by a bunch of stubborn outsiders were of paramount constitutional importance. Both sides, the government and the claimants, made their case on moral and legal grounds.
It would be a mockery of the people, argued PM May, if we asked them to give us a mandate to act and then asked someone else too. MPs, after all, are elected by the same voters, the source of our legitimisation. Legally, the indisputable and unfettered power of the British government to act in foreign matters rested, as the government’s lawyers claimed, on “prerogative powers”.
Prerogative powers are the residual, absolute powers of a monarch, stemming from times when the rulers of the British Isles could declare war on the Pope, behead their opponents, or spirit away unwanted wives unquestioned by any power spiritual or temporal. In modern times, these vastly-diminished crown powers were exercised on a rather humble basis – to receive diplomats for instance, or to pardon prisoners. Because even a monarch is subordinate to law.
The ruling of England’s most respected judges, the Lord Chief Justice Lord Cwmgiedd, the Master of the Rolls, Sir Etherton and Lord Justice Sales, was resoundingly clear: law must reign supreme. Neither the Queen nor her government can undo what the Houses of Parliament have decided. Only the law can authorise Theresa May to declare Article 50 and to demand a break from Europe.
What will happen now? May’s lawyers are expected to appeal. In the early days of December, all 11 judges of the UK’s Supreme Court will hear the case of the hairdresser against the government and review the current judgment.
It is highly unlikely that they will come to a different conclusion. The government will then have to prepare a draft law for Parliament. This could be in the form of a simple authorisation, or in the form of a Bill stating in clear terms how the Tory government wishes to secede from Europe, addressing questions of trade, migration and the desired future relationship with the EU.
It would be overly optimistic to expect England’s parliamentarians to ignore the referendum result altogether, however damaging the MPs may find the story of Brexit. If no majority for a constitutionally compliant exit-law can be achieved, new elections will be called, to either legitimise the current government or to form a new government.
In the meantime, this peculiar court case is stirring up atavistic sentiments: the claimants receive increasingly hair-raising hate mail and even death threats, demonstrators besiege the court buildings and the law firms’ offices are covered in graffiti and they have to face racial abuse soliciting 24/7 police protection.
And the English tabloids too are in war-mongering mood, calling the courts “out of touch” and “enemies of the people”.
Advent in England won’t be a very peaceful affair.