Paris Gourtsoyannis: Government is prepared for defeat

Pro-Leave supporters gather outside the Supreme Court on the first day of the Article 50 hearing.

There are two things in the world you don’t want to see being made, the saying goes: laws and sausages. To that list, you can probably add an exit from the European Union.

At least, that must be the view of the UK Government, which is so desperate not to have its objectives for the upcoming Brexit negotiation dissected by MPs that it has taken a legal challenge over who gets to trigger Article 50 to the Supreme Court, in an appeal many legal experts believe is un-winnable.

The government’s stated reason for bringing the top judges in the land to bear on whether the royal prerogative can be used to take us out of the EU is that Article 50 is too important to be left in the hands of MPs. They could seek to block, delay or divert Brexit, and in so doing force the government to spill the beans on its wish list for talks in Brussels.

In reality, the ramifications of the case are far more interesting beyond the Commons, where the issue of Article 50 is largely settled.

The value of the case for the government is that it draws the focus away from the substance of Brexit, and runs down the clock until the real negotiations begin.

Rather than protecting a negotiating position, ministers have far more interest in protecting the fact that a consensus has yet to be reached around what that position should be. That much was made clear last week when Brexit Secretary David Davis left open the possibility the UK could pay to gain access to the European single market, similar to Norway.

Far from Brexit saving £350 million a week, it seemed the UK was instead going to keep paying the EU for some of the same privileges the UK enjoys now.

It was a suggestion that Foreign SecretaryBoris Johnson moved quickly to close down, coming out within days to say he didn’t envisage any big-ticket payments to the EU beyond the cost of access to the Erasmus student transfer scheme.

In the phoney war that will persist until the real hostilities of Brexit negotiations begin, slips of the tongue and open-ended answers will be magnified by reporters desperate to fill air-time and newspaper pages with what is the biggest story of the year.

Once the real business of Brexit starts in Brussels, there will be leaks and counter-leaks from 27 different sets of negotiating teams in a dozen languages. For now, however, the real story is one which the UK has yet to come to terms with. The government can’t provide answers to key questions not because ministers don’t want to, but because the answers depend on factors far beyond their control that will unfold over the next year, far from Westminster in far-flung European capitals.

In terms of what happens at the Supreme Court and in the Commons, the government is already well prepared for a defeat that many believe to be likely. Civil servants have reportedly drafted a tightly-worded bill of just a couple of lines that ministers hope will deflect any amendments.

Ultimately, in the face of opposition from the SNP and a handful of others, MPs will pass it. Much has been made of Theresa May’s slender majority and the risk of parliament blocking Article 50 legislation, but it isn’t the Commons that the Prime Minister has to worry about. On her own benches, the handful of restive Remainers like the redoubtable Anna Soubry MP are in a tiny minority, while facing them is a Labour Party paralysed by Brexit.

Opposition MPs know they face a threat on two fronts, with Ukip threatening to squeeze their vote in areas that voted to Leave the EU, and the Lib Dems, buoyed by victory in Richmond Park, hoping to exploit Labour’s equivocation in Remain-voting cities.

Jamming a piece of direct democracy into the workings of one of the oldest parliamentary democracies in the world has unsurprisingly seized the mechanism of the elected chamber. So is the piece of legal history unfolding across from the Palace of Westminster just a sideshow? Not at all.

For starters, getting Article 50 legislation through the Commons won’t be half as a difficult as getting it through the House of Lords, whose members have no electorate to answer to, where a large number of cross-bencher peers are free from any party loyalty, and where 103 Lib Dems carry far more weight than the same party commands in the Commons.

Within days of the EU referendum vote, the Conservative peer Patience Wheatcroft was talking up the prospect of the House of Lords blocking Brexit. The Salisbury Convention dictates that the Lords should not stop an elected government carrying out a programme set out in an election manifesto, and the 2015 Conservative manifesto says the party will deliver an in-out EU referendum - but nothing about how the result will be enacted.

After the Richmond by-election, people are waking up to the reality that the EU could be an even more potent dividing line in British politics after the referendum than it ever was before. You could not strike a more dangerous match over the diesel slick of anger at ‘un-elected elites’ than an election triggered by the House of Lords blocking Brexit.

Secondly, as Alex Salmond warned at the weekend, the Supreme Court will issue a far more significant constitutional judgment on the Scotland Act and the legal underpinning of devolution. Depending on how the court interprets the Scottish Parliament’s powers, its ruling could expose the limitations of the UK’s unwritten constitution.

Finally, with the threat of a second independence referendum potentially enhanced if the Supreme Court rules in the Scottish Government’s favour, there is little room for wider constitutional debate. Last week a report by the Commons Scottish Affairs Committee set out a well-argued case for Scotland to get more powers over immigration, particularly after Brexit. It will struggle to attract the attention it deserves while the phoney war goes on.