Brexit shock: government ordered to obey the law

I am inescapably reminded of Sir Walter Scott: ‘Oh, what a tangled web we weave, When first we practise to deceive!’ Yes, Brexiteers, I’m talking to you.

Take back control? By all means. Restore the sovereignty of the Westminster parliament? Please, go ahead. But do not then have the brass neck to whinge about the three High Court judges who on Thursday ruled that the government does not have the right to steamroller Brexit through without parliamentary approval. You wanted it? You got it. So stop moaning.

Even if the judges’ ruling is overturned by the Supreme Court, the cat is out of the bag. Theresa May has been trying to take the UK out of the EU on her terms, only her terms, and nothing but her terms.

She won’t get away with it, and nor should she. She doesn’t believe in it, she wasn’t elected to do it, and most MPs don’t believe in it either. Yes, the UK will leave the EU, but No, she can’t ignore parliament.

The judges have not derailed Brexit. They have not tried to subvert the popular will. They have simply upheld the law, and the constitution of the land, under which parliament is sovereign. Remainers should put away their balloons; Thursday’s ruling has not stopped Brexit in its tracks.

Even so, ‘tangled web’ doesn’t begin to describe the mess we’re in. MPs may now have to have to choose between either doing what they believe to be best for the country, or what the majority of their constituents voted for on 23 June. Are they representatives, or are they delegates? The only political answer that makes sense is that they must act as representatives who know what the consequences will be if they vote against the wishes of their constituents.

We are also now plunging into deep and uncharted Euro-legal waters over whether or not an application to leave the EU by triggering Article 50 of the Lisbon treaty is irreversible. It isn’t, according to the man who wrote it, Lord Kerr of Kinlochard, who as Sir John Kerr was the UK’s ambassador to the EU and then head of the diplomatic service.

He told the BBC: ‘It is not irrevocable. You can change your mind while the process is going on. During that period, if a country were to decide actually we don’t want to leave after all, everybody would be very cross about it being a waste of time. They might try to extract a political price but legally they couldn’t insist that you leave.’

Mrs May says different. In the words of the High Court ruling: ‘The process for withdrawal is governed by Article 50 of the Treaty on European Union, which states that once a Member State gives notice to withdraw there is a two-year period in which to negotiate a withdrawal agreement … The Government accepts that a notice under Article 50 cannot be withdrawn once it has been given.’

We shall see. In the end, it’ll be the politicians as well as the judges who will decide, and I have little doubt that if MPs are asked to approve the government’s intention to invoke Article 50, they will do so, against their own convictions, but at a price. And that is where the web will become yet more tangled.

MPs will want to be able to scrutinise every dot and comma of the government’s negotiating strategy. If Nissan – and presumably other foreign-owned car manufacturers – can be furnished with a blank cheque to persuade them to stay put, what about pharmaceutical companies, or aircraft manufacturers, or financial services? Every MP with a company in their constituency that depends on exporting to the EU will want special treatment. Tangle upon tangle upon tangle.

And that’s without even beginning to factor in the special interests of the 27 remaining members of the EU. If the Walloons can almost derail a painfully negotiated EU trade agreement with Canada, just think what they could do to any proposed deal with the UK. After all, everyone loves the Canadians, which is more than can be said for the wretched Brits.

Spare a thought, for example, for Ireland’s mushroom growers. Five Irish mushroom farms have already gone out of business since the UK’s Brexit referendum, because the collapse in the value of the pound has meant they can no longer be competitive while paying all their costs in euros. Eighty per cent of Ireland’s mushrooms are exported to the UK, as are 84% of its poultry exports and 65% of its cheddar cheese exports. So we’re not winning a lot of friends in Ireland, nor indeed in Spain, which is our biggest supplier of fruit and vegetables.

What Mrs May won’t admit is that the future shape of the UK’s relationship with the EU does not depend only on her, nor even on parliament. It takes two to strike a new trade deal, so if she needs help on learning how to tango, perhaps she should call on Ed Balls.

When Boris Johnson said the government would make a ‘Titanic success’ of Brexit, he may well have been much closer to the truth than he intended. There are icebergs ahead and there will be storms aplenty before we reach them.