Britain’s Supreme Court has made leaving the EU easier and keeping the UK together harder

Seeking sovereignty.
Seeking sovereignty.
Image: Reuters/Stefan Wermuth
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The UK’s Supreme Court has added another twist to the Brexit saga. Today it ruled that prime minister Theresa May cannot officially start the process of leaving the European Union without approval from parliament. This upheld the opinion of a lower court, as expected. More significantly, the highest court said that parliament does not also need the consent of the devolved administrations of Scotland, Wales, and Northern Ireland in order to push ahead with Brexit.

The court ruling, some legal experts say, adds even more uncertainty to an already fraught process. May recently fleshed out her intentions in the EU divorce negotiations—her previous mantra was simply “Brexit means Brexit”—but many thorny questions remain about post-Brexit Britain’s relationship with the rest of the EU, by far its largest trading partner. Business are bracing “for another period of prolonged uncertainty,” according to Karen Briggs, head of Brexit at KPMG.

Markets weren’t sure what to make of the Supreme Court ruling, with the pound see-sawing against the dollar after the ruling. The general direction of travel, though, was down, as it usually is whenever more details about the Brexit process are revealed.

How did we get here?

Prime minister May committed to trigger Article 50, the official notification to leave the EU, by March this year. This quickly landed her in legal trouble, with a lawsuit lodged by an unusual alliance of an investment manager, some British expats, and a hairdresser challenging her authority to trigger Article 50 without parliament’s approval.

The case centered on ancient rights, called the royal prerogative, once held by kings and queens and now by the prime minister. May argued that the royal prerogative allowed her to decide to quit treaties, such as the one that the UK signed when it joined the EU in 1973.

Her opponents instead said that the royal prerogative would be abused if used in this case. Since becoming a member of the EU, British citizens have enjoyed certain fundamental rights, such as the ability to appeal to the European Court of Justice. If May were to trigger Article 50, it would cause the citizens to lose these rights, a change that can only be authorized by the full parliament.

In November, a UK high court heard the case and ruled against May. Now, after May appealed, the Supreme Court has also ruled against her. Legal experts were expecting May to lose, but they were watching the highest court for other details that could add complications and delay the Brexit process.

The UK parliament is made up of two houses. The lower house (the House of Commons) has elected members and the upper house (the House of Lords) has members appointed by the queen. May will need to pass an act of parliament through both houses before she is allowed to trigger Article 50.

When the act is put to a vote, it is likely to pass the House of Commons. May’s Conservative Party has a majority and the opposition Labour Party has declared that it will tell its members to vote in favor, too. Where things will get tricky is in the House of Lords, where members are likely to seek modifications and ask for details about how May’s government will negotiate the post-Brexit deal with the EU. Any modifications made will cause the process to start from scratch, with the act put to vote in the lower house again.

“If the debate ping-pongs between both houses, it is unlikely that May will be able to trigger Article 50 by the end of March as she hopes,” said Guy Lougher, head of Brexit advisory at Pinsent Masons.

Devolution of powers

Beyond describing May’s powers under the royal prerogative, the Supreme Court was also charged with deciding how Brexit will play with members nations of the UK.

If the devolved governments of Scotland, Wales, and Northern Ireland had a say on whether or not to trigger Article 50, May would face stiff opposition. Only a majority of voters in England and Wales voted to leave the EU, while more people Scotland and Northern Ireland wanted to remain.

Fortunately for the prime minister, the court decided the devolved governments should not have a formal role in deciding whether the UK remains part of the EU. “This removes a very significant obstacle in the way of Brexit,” said Lougher.

That, however, won’t stop Scotland, in particular, from causing trouble. After ruling, Nicola Sturgeon, who leads Scotland’s devolved parliament, warned the UK government that she will ensure that the will of the Scottish people is heard. She said she will “ensure that the Scottish Parliament has the opportunity to vote on whether or not it consents to the triggering of article 50.”

If May doesn’t appease Sturgeon, it is possible that the Scottish leader will angle for another referendum on independence from the UK. Scottish voters chose to remain a part of the UK in a 2014 vote, but in a general election the following year Sturgeon’s Scottish National Party (the name makes it clear where they stand) won an overwhelming majority of UK parliament seats north of the border.

In Northern Ireland, there are other complications. A 1998 treaty created a soft border between that part of Britain and the Republic of Ireland, which will remain part of the EU. As Quartz reported previously:

This soft border is now in jeopardy, McCall, who has done extensive research on European borders and cross-border cooperation, explains. Despite voting to remain within the EU, Northern Ireland will have to leave along with the rest of the UK. With the border between Northern and the rest of Ireland now an external frontier of the EU, some fear that Brexit and the bid to “take back control” of the UK’s borders could see a return to a hard border, inflaming old tensions and destabilizing the 20-year peace process.

In effect, the Supreme Court has made some aspects of Brexit easier for Theresa May. But by sidelining Britain’s devolved governments from the divorce proceedings, the judges have made the United Kingdom itself less united than before.