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Speaker 1: The UK Supreme Court ruled today that Parliament must act

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Speaker 1: before Prime Minister Theresa May can begin negotiations to leave

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Speaker 1: the European Union. The ruling complicates the process of Brexit,

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Speaker 1: which was approved by UK voters in June, but May's

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Speaker 1: government says it still plans to start talks with the

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Speaker 1: EU by the end of March. Here is Lord David Newburger,

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Speaker 1: President of the Supreme Court, announcing the eight to three

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Speaker 1: ruling today. The referendum is of great political significance, but

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Speaker 1: the Act of Parliament which established it did not say

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Speaker 1: what should happen as a result. So any change in

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Speaker 1: the law to give effect to the referendum must be

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Speaker 1: made in the only way permitted by the UK Constitution,

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Speaker 1: namely by an Act of Parliament. With us to discuss

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Speaker 1: the ruling as well as its implications for Brexit and

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Speaker 1: UK constitutional law are Michael Gordon, professor at the University

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Speaker 1: of Liverpool and Stephen Piers, professor at the University of

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Speaker 1: exit Essex. Welcome to you both, Thanks for joining us.

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Speaker 1: Mike in a nutshell, what was the core of the

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Speaker 1: reasoning of the UK Supreme Court majority today? Okay, so

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Speaker 1: the so the core of the reason today on the

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Speaker 1: on the primary conclusion at least that there's a need

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Speaker 1: for an Act of Parliament to authorize the government beginning

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Speaker 1: that process as a negotiation of our of our exit

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Speaker 1: from the EU, and the under Article fifty of the

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Speaker 1: European Treaties was that in domestic terms, EU law is

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Speaker 1: what the majority called almost a new source of law

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Speaker 1: in the UK Constitution. And what the majority has concluded

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Speaker 1: is that the government's royal prerogative powers, the sort of

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Speaker 1: powers that the government possesses to conduct international relations and

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Speaker 1: ratify treaties, can't be used to cut off a new

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Speaker 1: source of law, as they call it, that the nineteen

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Speaker 1: seventy two European Communities Act, an act of Parliament that

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Speaker 1: brought us into the EU, has established. So it's quite

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Speaker 1: it's quite an interesting argument about EU law being this

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Speaker 1: sort of this new source of law and the UK

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Speaker 1: Constitute and then saying that the legislation of Parliament in

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Speaker 1: nineties two and legislation since then dealing with changes to

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Speaker 1: our EU membership, haven't you know, hasn't given the government

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Speaker 1: hasn't left the government with the power and of the

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Speaker 1: royal prerogative to sort of begin that process of withdrawal,

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Speaker 1: which they say is different from just change to the treatise,

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Speaker 1: which the Act allows. The process of withdrawal, they say

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Speaker 1: will be would be different because it would cut off

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Speaker 1: this new source of law. That's the essential argument of

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Speaker 1: the majority today, Stephen, there were three in the minority.

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Speaker 1: What was their argument, Well, they started the more traditional view,

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Speaker 1: which is that the government's power to sign up to

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Speaker 1: treatise and announced treaties isn't limited, at least in this

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Speaker 1: case by Epean community. That because it would still stay

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Speaker 1: on the books, and it even though it didn't create

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Speaker 1: any legal effects, perhaps it would. Nevertheless, the minority felts

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Speaker 1: they wanted to give precedence to the government's power to

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Speaker 1: act over Parliament's powered. Sort of. There are two rules

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Speaker 1: really in conflict with each other here, whether whether you

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Speaker 1: give precedence to the government's power to act or treaties

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Speaker 1: or parliament's power to change its previous Act of Parliament.

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Speaker 1: And the majority went with the parliament's power having precedents.

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Speaker 1: That minority went with the government's power having precedents. This case,

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Speaker 1: of course, was on appeal a lower court. The UK

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Speaker 1: High Court had had also ruled that Parliament had to

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Speaker 1: act that was a few months ago. Are there material

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Speaker 1: differences between what the Supreme Court said today and what

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Speaker 1: the High Court said a few months ago? Yeah, I

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Speaker 1: think there are. I think I think this this sort

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Speaker 1: of line about a new source of law. EU law

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Speaker 1: being recognized within the domestic UK constitutional system as a

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Speaker 1: new source of law does does sort of mark a

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Speaker 1: difference from what the what the Divisional Court has said.

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Speaker 1: I don't think the majority in the Supreme Court today

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Speaker 1: have necessarily moved away too dramatically from what the Divisional

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Speaker 1: Court had said in and again reaching the same conclusions

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Speaker 1: earlier before Christmas. But I think this argument about a

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Speaker 1: new source of law, it's potentially quite a novel one,

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Speaker 1: but it's also potentially quite controversial. I think it's I

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Speaker 1: think it's it's quite It's interesting that only now we

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Speaker 1: are leaving the European Union as a result of the

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Speaker 1: referendum vote, has the Court felt able to make quite

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Speaker 1: strong claims about EU law being itself a source of

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Speaker 1: law in the Constitution. Obviously, the Act of Parliament that

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Speaker 1: brought us into the EU is still the crucial underpinning

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Speaker 1: for that. But I think this this argument about EU

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Speaker 1: law being a new sources is different. Perhaps the other

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Speaker 1: difference as well is that the Supreme Court seems to

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Speaker 1: have moved away from some of the bigger constitutional claims

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Speaker 1: that the Divisional Court made about, say the constitutional status

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Speaker 1: of the Act of Parliament that took us into the

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Speaker 1: into the into the European Unions. So there are some

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Speaker 1: materials and some quite interesting differences, I think, even though

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Speaker 1: the result is the same. Stephen lawmakers, including some within

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Speaker 1: Maze Conservative Party, are talking about amending Article fifty, with

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Speaker 1: some roadblocks such as calling for a so called white paper.

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Speaker 1: Tell us about those, yes, well, especially the three bigger

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Speaker 1: opposition parties, the Liberals of the Scottish Nationalists and the

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Speaker 1: labor parties have all said their proposed amendments, and I

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Speaker 1: think at least a few Conservatives will go along with them.

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Speaker 1: So yeah, if you get a majority, if you get

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Speaker 1: about ten Conservatives jumping over and all the opposition together,

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Speaker 1: you would have a majority in the House of Commons

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Speaker 1: to push to an amendment. So the sort of things

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Speaker 1: that tabling are different between the different parties. But there

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Speaker 1: are things like a white paper, as you said, so

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Speaker 1: we have a prior discussion before we go ahead and

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Speaker 1: in Vogue articles fifty. It's things like reporting regularly back

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Speaker 1: to Parliament about the negotiations. It's the Liberals want to

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Speaker 1: have a new referendum later on, and maybe the Scottish

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Speaker 1: Nationalists as well, and that's I think would be hard

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Speaker 1: to get enough votes for that. That's a crucial one.

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Speaker 1: And some of them want to stay in the East

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Speaker 1: Single Market, which you can still do as a non

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Speaker 1: EU country. Um so that might be a big issue

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Speaker 1: as well if they have enough for that, Mike. Much

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Speaker 1: like in this country, with a lot of things going

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Speaker 1: with Donald Trump, they're the politics of various issues have

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Speaker 1: sort of been scrambled. Is there a Conservative Labor split

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Speaker 1: on these issues that that Steve was talking about or

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Speaker 1: are these all issues that kind of kind of cross

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Speaker 1: the parties. I mean, I think there are very clear Well,

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Speaker 1: there are differences in position between the Conservative government and

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Speaker 1: the Labor Party. I think one of the things the

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Speaker 1: Labor Party is finding it particularly difficult to quite pin

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Speaker 1: down in relation to its attempts to hold the government

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Speaker 1: to accounts, are how you get that balance that between

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Speaker 1: putting in the kind of amendments to this bill that

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Speaker 1: Steve was was just talking about, you know, amendments that

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Speaker 1: that perhaps make the process of the government negotiating Brexit

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Speaker 1: a little bit more difficult. Try to sort of upsloot

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Speaker 1: will be the wrong word, but but certainly try to

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Speaker 1: conde and control that legally. And also then the Labor

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Speaker 1: Party's stated recognition that they want to give effect to

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Speaker 1: the terms of the referendum, they don't want to be

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Speaker 1: seen to be obstructing the triggering of Article fifty. So

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Speaker 1: that's quite a delicate balance for them for them to tread.

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Speaker 1: And again within you know, within the Conservative Party that

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Speaker 1: the government's majority is relatively narrow, so it doesn't take

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Speaker 1: too many Conservatives who would perhaps have preferred to remain

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Speaker 1: in the European Union, of which there are some, if

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Speaker 1: not many, but it doesn't take too many of them

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Speaker 1: to sort of to vote to vote with the opposition

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Speaker 1: perhaps to try and get some tractions these members. But

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Speaker 1: it's very unclear because of course, I think all the

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Speaker 1: parties that was a vote in Parliament previously, that Parliament

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Speaker 1: and the House of Commons committed. We're talking about today's

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Speaker 1: UK Supreme Court decision requiring an Act of Parliament before

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Speaker 1: Prime Minister Theresa May can start Brexit negotiations. UK Brexit

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Speaker 1: Secretary David Davis moved quickly to try to douse any

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Speaker 1: speculation that the ruling might derail Brexit. This ugment does

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Speaker 1: not change the fact that the UK we leave in

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Speaker 1: the European Union and it's our job to deliver on

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Speaker 1: the instruction the people of UK have given us. We're

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Speaker 1: talking with Michael Gordon, a professor at the University of

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Speaker 1: Liverpool and Stephen Piers, a professor at the University of Essex.

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Speaker 1: Steve Um, I gather that the UK Supreme Court didn't

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Speaker 1: decide whether Article fifty is revocable. Um, you tweeted about that,

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Speaker 1: and I want to ask you about the significance of

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Speaker 1: that silence. Is there a possibility that once it is triggered,

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Speaker 1: that Britain may may change its mind. Yes, I wouldn't

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Speaker 1: say it's a big possibility, but certainly some people believe

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Speaker 1: that it's something they want to keep pressing for and

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Speaker 1: arguing that maybe we should have another referendum, more vote

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Speaker 1: of Parliament on on that issue. Of course, it's an

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Speaker 1: important legal question whether it is even possible to revoke

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Speaker 1: the notice once it's sent, and it is very interesting

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Speaker 1: the Supreme Court was deliberate in saying we don't take

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Speaker 1: a view on that. Even though the parties to the

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Speaker 1: case decided that it was irrevocable. The Film Court said, well,

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Speaker 1: we're not going to decide that. The importances of that

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Speaker 1: is that there's another case about should be brought, strangely

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Speaker 1: enough in the Irish Courts asking the Irish Courts to

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Speaker 1: ask the U Court on whether Articles fifty is revocable.

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Speaker 1: So there are certainly people out there, and I'm sure

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Speaker 1: there's a Preme Court knew about this who are planning

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Speaker 1: somehow to try and get that question on to the

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Speaker 1: argument either way, of course, and if it is revocable,

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Speaker 1: it doesn't need politically that it's going to happen that

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Speaker 1: he could do a vote, but I think it does

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Speaker 1: change the political dynamics knowing the possibility is always there

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Speaker 1: to revoke the Article fifty notice is afterwards sent Mike.

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Speaker 1: We were talking about amendments to Article fifty earlier, and

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Speaker 1: for May's critics, after she pledged last week to leave

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Speaker 1: the e Use Single Market to win control of immigration

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Speaker 1: and lawmaking, essentially a so called hard Brexit, did that

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Speaker 1: lead them to consider amendments even more. I suspect it will.

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Speaker 1: I suspect that, having heard Theresa May's plan, or so

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Speaker 1: far as it is a plan, in her speech last week,

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Speaker 1: at least her identification of her negotiating priorities, I suspect

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Speaker 1: that will raise the stakes for those parties who who

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Speaker 1: are who are opposed to Brexit, you know, I mean,

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Speaker 1: I suspect many of them would have tried to advance

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Speaker 1: the kind of amendments were likely to see anyway, Whether

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Speaker 1: it means that those amendments in the context of Theresa

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Speaker 1: May certainly going for quite a full blooded Brexit withdraw

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Speaker 1: from the Single Market and probably from most aspects of

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Speaker 1: the Customers Union as well. I suspect that will raise

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Speaker 1: the stakes and perhaps go on a more support for

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Speaker 1: those amendments. Stephen, There's one other aspect of the ruling

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Speaker 1: I want to ask you about. The courts said that

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Speaker 1: Theresa May did not need to consult with the regional

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Speaker 1: governments of Scotland, Wales in Northern Ireland. How significant is

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Speaker 1: that part of the ruling. Well, in one way it

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Speaker 1: lets her off the hook because Scottish Parliament would certainly

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Speaker 1: have voted against it. In all of an Ireland Parliament

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Speaker 1: is sort of suspended at the moment. It's not quite

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Speaker 1: clear when we'll get it back because a separate political crisis.

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Speaker 1: There is not quite clear whether the Welsh government will

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Speaker 1: go along with it either, because they have their own

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Speaker 1: plans they announced yesterday which don't really match the truth

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Speaker 1: Amazed plan. So she's avoided all of that. But the

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Speaker 1: way in which Supreme Court decided that, I think creates

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Speaker 1: further political problems of a different sort, because it's said

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Speaker 1: basically that Scotland and Wales and Northern Ireland can ignored,

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Speaker 1: and given that Scotland and Orban Islands voted to stay,

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Speaker 1: and given that to the Welsh government's taking a different

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Speaker 1: view from the Wesdensity government, it's obviously going to irritates

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Speaker 1: them a great deal. And obviously the Scotts government, particul that,

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Speaker 1: being a Scottish nationalist government, is going to try and

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Speaker 1: use this as part of it political arguments to try

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Speaker 1: again for Scottish independence. It doesn't mean they will get

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Speaker 1: anywhere on that, but it's certainly an argument they can

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Speaker 1: try and make. So it sounds like she may have

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Speaker 1: some political reasons to consult with those regional governments, even

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Speaker 1: if she doesn't isn't legally required to do it. I

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Speaker 1: want to thank our guests Michael Gordon at the University

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Speaker 1: of Liverpool and Stephen Pierce at the University of Essex. Uh.

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Speaker 1: That's a word I keep having trouble saying today. They

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Speaker 1: are two people we always rely on when we have

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Speaker 1: developments in the court fight over Brexit in the UK.