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Brexit verdict so predictable a first-year law student could have written it


Sir Terence Etherton

Sir Terence Etherton


Lord Justice Sales

Lord Justice Sales


Lord Thomas

Lord Thomas



Sir Terence Etherton

Be in no doubt that we are in the worst political crisis since the end of the Second World War. The sensational verdict by the High Court in London to rule against the Government's decision to trigger Article 50 to leave the EU without having a parliamentary vote has thrown the Brexit strategy of Theresa May into chaos. While May's approach to Brexit previously seemed directionless, or confused, it is now utterly derailed.

Given the fact that the Government is appealing the decision by the High Court to the Supreme Court, Theresa May has, of course, a little interlude of about a month in which to stabilise the thinking and direction of her Government in terms of politically managing how to deal with parliament and conduct a coherent exit strategy.

It should be borne in mind that it is extremely unlikely that the Government will win its appeal, as the High Court ruling was so clear and definitive. The court ruled that the most fundamental rule of the UK constitution over the centuries was that parliament is sovereign, and that the government of the day cannot override legislation enacted by parliament. The court was of the view that triggering Article 50 and leaving the EU would change domestic law and, as such, require parliamentary approval.

This conclusion should not have come as much surprise to the Government, as a first-year law student could have written the same judgment. In short, the Government is subject to parliament - not the other way round.

The reaction of some Brexiteers and their supporters in the Tory Press was clearly over the top.

The court also made it clear that it had no view on Brexit itself, rather that parliament had the final say in triggering Article 50. This was, for the court, a decision based not on Brexit as a policy, but the legal procedure necessary to activate the Brexit process.

Predictably, here in Northern Ireland we are totally polarised on this vitally important political and economic issue. The First and Deputy First Ministers are at daggers drawn as to how to proceed. Arlene Foster is adopting a petulant, short-sighted, pro-Brexit approach, which is patently unsuited to the best interests of the economy here, never mind the profound implications for the future of good cross-border political relations in Ireland.

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Despite Enda Kenny's sensible and inclusive approach on Brexit, the northern parties are in a state of disarray. The most sensible approach was Colum Eastwood's idea of Northern Ireland retaining a special status within the EU, but that fell foul of Assembly support by dint of People Before Profit, who voted with the DUP to defeat it. Eamonn McCann and his Trotskyite comrades see the EU as a capitalist conspiracy.

But the idea of special status should, surely, commend itself on a practical level to pro-Brexit unionists, as it is essentially a halfway house, neither fully in nor fully out of the EU, with all the economic and social benefits that might be accrued from that compromise position.

For Northern Ireland, there should be a special arrangement, given our acute geopolitical peripherality and our dependence on important and necessary funding by the EU.

We, as a special case, should be permitted to remain a member of the single market and have complete freedom of movement of labour for all EU citizens.

Although the Referendum Act did not make the result of the referendum lawfully binding on parliament, nonetheless, the result was highly persuasive in forcing the Labour Party into accepting Brexit.

The problem for Theresa May is that a vote in parliament on triggering Article 50 will inevitably expose the serious divisions on Europe within the Conservatives.

Therefore, a combination of Tory dissidents and the Opposition parties could prevent Article 50 being triggered at all, or, more likely, the terms of a hard Brexit that Theresa May probably now favours. This would be a disaster for the Government and would cause it to fall. The court's decision now makes her the prisoner of the Opposition at Westminster.

The issue of an early general election is an interesting one. Is it a bluff by May to silence the dissidents in her own party? Or it is a warning to Labour, who are still in disarray with a leader without the wholehearted support of his MPs? If Theresa May is defeated on the Brexit vote, there will definitely be a general election. But to whose benefit would an election be? Probably no one as, even with a likely increased Conservative majority, there would remain the recurring question of a soft or hard Brexit, so we would be back to the same muddle as before. The issues seem intractable and the consequences for here extremely bad.

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