Speaker 1: The UK Supreme Court ruled today that Parliament must act
Speaker 1: before Prime Minister Theresa May can begin negotiations to leave
Speaker 1: the European Union. The ruling complicates the process of Brexit,
Speaker 1: which was approved by UK voters in June, but May's
Speaker 1: government says it still plans to start talks with the
Speaker 1: EU by the end of March. Here is Lord David Newburger,
Speaker 1: President of the Supreme Court, announcing the eight to three
Speaker 1: ruling today. The referendum is of great political significance, but
Speaker 1: the Act of Parliament which established it did not say
Speaker 1: what should happen as a result. So any change in
Speaker 1: the law to give effect to the referendum must be
Speaker 1: made in the only way permitted by the UK Constitution,
Speaker 1: namely by an Act of Parliament. With us to discuss
Speaker 1: the ruling as well as its implications for Brexit and
Speaker 1: UK constitutional law are Michael Gordon, professor at the University
Speaker 1: of Liverpool and Stephen Piers, professor at the University of
Speaker 1: exit Essex. Welcome to you both, Thanks for joining us.
Speaker 1: Mike in a nutshell, what was the core of the
Speaker 1: reasoning of the UK Supreme Court majority today? Okay, so
Speaker 1: the so the core of the reason today on the
Speaker 1: on the primary conclusion at least that there's a need
Speaker 1: for an Act of Parliament to authorize the government beginning
Speaker 1: that process as a negotiation of our of our exit
Speaker 1: from the EU, and the under Article fifty of the
Speaker 1: European Treaties was that in domestic terms, EU law is
Speaker 1: what the majority called almost a new source of law
Speaker 1: in the UK Constitution. And what the majority has concluded
Speaker 1: is that the government's royal prerogative powers, the sort of
Speaker 1: powers that the government possesses to conduct international relations and
Speaker 1: ratify treaties, can't be used to cut off a new
Speaker 1: source of law, as they call it, that the nineteen
Speaker 1: seventy two European Communities Act, an act of Parliament that
Speaker 1: brought us into the EU, has established. So it's quite
Speaker 1: it's quite an interesting argument about EU law being this
Speaker 1: sort of this new source of law and the UK
Speaker 1: Constitute and then saying that the legislation of Parliament in
Speaker 1: nineties two and legislation since then dealing with changes to
Speaker 1: our EU membership, haven't you know, hasn't given the government
Speaker 1: hasn't left the government with the power and of the
Speaker 1: royal prerogative to sort of begin that process of withdrawal,
Speaker 1: which they say is different from just change to the treatise,
Speaker 1: which the Act allows. The process of withdrawal, they say
Speaker 1: will be would be different because it would cut off
Speaker 1: this new source of law. That's the essential argument of
Speaker 1: the majority today, Stephen, there were three in the minority.
Speaker 1: What was their argument, Well, they started the more traditional view,
Speaker 1: which is that the government's power to sign up to
Speaker 1: treatise and announced treaties isn't limited, at least in this
Speaker 1: case by Epean community. That because it would still stay
Speaker 1: on the books, and it even though it didn't create
Speaker 1: any legal effects, perhaps it would. Nevertheless, the minority felts
Speaker 1: they wanted to give precedence to the government's power to
Speaker 1: act over Parliament's powered. Sort of. There are two rules
Speaker 1: really in conflict with each other here, whether whether you
Speaker 1: give precedence to the government's power to act or treaties
Speaker 1: or parliament's power to change its previous Act of Parliament.
Speaker 1: And the majority went with the parliament's power having precedents.
Speaker 1: That minority went with the government's power having precedents. This case,
Speaker 1: of course, was on appeal a lower court. The UK
Speaker 1: High Court had had also ruled that Parliament had to
Speaker 1: act that was a few months ago. Are there material
Speaker 1: differences between what the Supreme Court said today and what
Speaker 1: the High Court said a few months ago? Yeah, I
Speaker 1: think there are. I think I think this this sort
Speaker 1: of line about a new source of law. EU law
Speaker 1: being recognized within the domestic UK constitutional system as a
Speaker 1: new source of law does does sort of mark a
Speaker 1: difference from what the what the Divisional Court has said.
Speaker 1: I don't think the majority in the Supreme Court today
Speaker 1: have necessarily moved away too dramatically from what the Divisional
Speaker 1: Court had said in and again reaching the same conclusions
Speaker 1: earlier before Christmas. But I think this argument about a
Speaker 1: new source of law, it's potentially quite a novel one,
Speaker 1: but it's also potentially quite controversial. I think it's I
Speaker 1: think it's it's quite It's interesting that only now we
Speaker 1: are leaving the European Union as a result of the
Speaker 1: referendum vote, has the Court felt able to make quite
Speaker 1: strong claims about EU law being itself a source of
Speaker 1: law in the Constitution. Obviously, the Act of Parliament that
Speaker 1: brought us into the EU is still the crucial underpinning
Speaker 1: for that. But I think this this argument about EU
Speaker 1: law being a new sources is different. Perhaps the other
Speaker 1: difference as well is that the Supreme Court seems to
Speaker 1: have moved away from some of the bigger constitutional claims
Speaker 1: that the Divisional Court made about, say the constitutional status
Speaker 1: of the Act of Parliament that took us into the
Speaker 1: into the into the European Unions. So there are some
Speaker 1: materials and some quite interesting differences, I think, even though
Speaker 1: the result is the same. Stephen lawmakers, including some within
Speaker 1: Maze Conservative Party, are talking about amending Article fifty, with
Speaker 1: some roadblocks such as calling for a so called white paper.
Speaker 1: Tell us about those, yes, well, especially the three bigger
Speaker 1: opposition parties, the Liberals of the Scottish Nationalists and the
Speaker 1: labor parties have all said their proposed amendments, and I
Speaker 1: think at least a few Conservatives will go along with them.
Speaker 1: So yeah, if you get a majority, if you get
Speaker 1: about ten Conservatives jumping over and all the opposition together,
Speaker 1: you would have a majority in the House of Commons
Speaker 1: to push to an amendment. So the sort of things
Speaker 1: that tabling are different between the different parties. But there
Speaker 1: are things like a white paper, as you said, so
Speaker 1: we have a prior discussion before we go ahead and
Speaker 1: in Vogue articles fifty. It's things like reporting regularly back
Speaker 1: to Parliament about the negotiations. It's the Liberals want to
Speaker 1: have a new referendum later on, and maybe the Scottish
Speaker 1: Nationalists as well, and that's I think would be hard
Speaker 1: to get enough votes for that. That's a crucial one.
Speaker 1: And some of them want to stay in the East
Speaker 1: Single Market, which you can still do as a non
Speaker 1: EU country. Um so that might be a big issue
Speaker 1: as well if they have enough for that, Mike. Much
Speaker 1: like in this country, with a lot of things going
Speaker 1: with Donald Trump, they're the politics of various issues have
Speaker 1: sort of been scrambled. Is there a Conservative Labor split
Speaker 1: on these issues that that Steve was talking about or
Speaker 1: are these all issues that kind of kind of cross
Speaker 1: the parties. I mean, I think there are very clear Well,
Speaker 1: there are differences in position between the Conservative government and
Speaker 1: the Labor Party. I think one of the things the
Speaker 1: Labor Party is finding it particularly difficult to quite pin
Speaker 1: down in relation to its attempts to hold the government
Speaker 1: to accounts, are how you get that balance that between
Speaker 1: putting in the kind of amendments to this bill that
Speaker 1: Steve was was just talking about, you know, amendments that
Speaker 1: that perhaps make the process of the government negotiating Brexit
Speaker 1: a little bit more difficult. Try to sort of upsloot
Speaker 1: will be the wrong word, but but certainly try to
Speaker 1: conde and control that legally. And also then the Labor
Speaker 1: Party's stated recognition that they want to give effect to
Speaker 1: the terms of the referendum, they don't want to be
Speaker 1: seen to be obstructing the triggering of Article fifty. So
Speaker 1: that's quite a delicate balance for them for them to tread.
Speaker 1: And again within you know, within the Conservative Party that
Speaker 1: the government's majority is relatively narrow, so it doesn't take
Speaker 1: too many Conservatives who would perhaps have preferred to remain
Speaker 1: in the European Union, of which there are some, if
Speaker 1: not many, but it doesn't take too many of them
Speaker 1: to sort of to vote to vote with the opposition
Speaker 1: perhaps to try and get some tractions these members. But
Speaker 1: it's very unclear because of course, I think all the
Speaker 1: parties that was a vote in Parliament previously, that Parliament
Speaker 1: and the House of Commons committed. We're talking about today's
Speaker 1: UK Supreme Court decision requiring an Act of Parliament before
Speaker 1: Prime Minister Theresa May can start Brexit negotiations. UK Brexit
Speaker 1: Secretary David Davis moved quickly to try to douse any
Speaker 1: speculation that the ruling might derail Brexit. This ugment does
Speaker 1: not change the fact that the UK we leave in
Speaker 1: the European Union and it's our job to deliver on
Speaker 1: the instruction the people of UK have given us. We're
Speaker 1: talking with Michael Gordon, a professor at the University of
Speaker 1: Liverpool and Stephen Piers, a professor at the University of Essex.
Speaker 1: Steve Um, I gather that the UK Supreme Court didn't
Speaker 1: decide whether Article fifty is revocable. Um, you tweeted about that,
Speaker 1: and I want to ask you about the significance of
Speaker 1: that silence. Is there a possibility that once it is triggered,
Speaker 1: that Britain may may change its mind. Yes, I wouldn't
Speaker 1: say it's a big possibility, but certainly some people believe
Speaker 1: that it's something they want to keep pressing for and
Speaker 1: arguing that maybe we should have another referendum, more vote
Speaker 1: of Parliament on on that issue. Of course, it's an
Speaker 1: important legal question whether it is even possible to revoke
Speaker 1: the notice once it's sent, and it is very interesting
Speaker 1: the Supreme Court was deliberate in saying we don't take
Speaker 1: a view on that. Even though the parties to the
Speaker 1: case decided that it was irrevocable. The Film Court said, well,
Speaker 1: we're not going to decide that. The importances of that
Speaker 1: is that there's another case about should be brought, strangely
Speaker 1: enough in the Irish Courts asking the Irish Courts to
Speaker 1: ask the U Court on whether Articles fifty is revocable.
Speaker 1: So there are certainly people out there, and I'm sure
Speaker 1: there's a Preme Court knew about this who are planning
Speaker 1: somehow to try and get that question on to the
Speaker 1: argument either way, of course, and if it is revocable,
Speaker 1: it doesn't need politically that it's going to happen that
Speaker 1: he could do a vote, but I think it does
Speaker 1: change the political dynamics knowing the possibility is always there
Speaker 1: to revoke the Article fifty notice is afterwards sent Mike.
Speaker 1: We were talking about amendments to Article fifty earlier, and
Speaker 1: for May's critics, after she pledged last week to leave
Speaker 1: the e Use Single Market to win control of immigration
Speaker 1: and lawmaking, essentially a so called hard Brexit, did that
Speaker 1: lead them to consider amendments even more. I suspect it will.
Speaker 1: I suspect that, having heard Theresa May's plan, or so
Speaker 1: far as it is a plan, in her speech last week,
Speaker 1: at least her identification of her negotiating priorities, I suspect
Speaker 1: that will raise the stakes for those parties who who
Speaker 1: are who are opposed to Brexit, you know, I mean,
Speaker 1: I suspect many of them would have tried to advance
Speaker 1: the kind of amendments were likely to see anyway, Whether
Speaker 1: it means that those amendments in the context of Theresa
Speaker 1: May certainly going for quite a full blooded Brexit withdraw
Speaker 1: from the Single Market and probably from most aspects of
Speaker 1: the Customers Union as well. I suspect that will raise
Speaker 1: the stakes and perhaps go on a more support for
Speaker 1: those amendments. Stephen, There's one other aspect of the ruling
Speaker 1: I want to ask you about. The courts said that
Speaker 1: Theresa May did not need to consult with the regional
Speaker 1: governments of Scotland, Wales in Northern Ireland. How significant is
Speaker 1: that part of the ruling. Well, in one way it
Speaker 1: lets her off the hook because Scottish Parliament would certainly
Speaker 1: have voted against it. In all of an Ireland Parliament
Speaker 1: is sort of suspended at the moment. It's not quite
Speaker 1: clear when we'll get it back because a separate political crisis.
Speaker 1: There is not quite clear whether the Welsh government will
Speaker 1: go along with it either, because they have their own
Speaker 1: plans they announced yesterday which don't really match the truth
Speaker 1: Amazed plan. So she's avoided all of that. But the
Speaker 1: way in which Supreme Court decided that, I think creates
Speaker 1: further political problems of a different sort, because it's said
Speaker 1: basically that Scotland and Wales and Northern Ireland can ignored,
Speaker 1: and given that Scotland and Orban Islands voted to stay,
Speaker 1: and given that to the Welsh government's taking a different
Speaker 1: view from the Wesdensity government, it's obviously going to irritates
Speaker 1: them a great deal. And obviously the Scotts government, particul that,
Speaker 1: being a Scottish nationalist government, is going to try and
Speaker 1: use this as part of it political arguments to try
Speaker 1: again for Scottish independence. It doesn't mean they will get
Speaker 1: anywhere on that, but it's certainly an argument they can
Speaker 1: try and make. So it sounds like she may have
Speaker 1: some political reasons to consult with those regional governments, even
Speaker 1: if she doesn't isn't legally required to do it. I
Speaker 1: want to thank our guests Michael Gordon at the University
Speaker 1: of Liverpool and Stephen Pierce at the University of Essex. Uh.
Speaker 1: That's a word I keep having trouble saying today. They
Speaker 1: are two people we always rely on when we have
Speaker 1: developments in the court fight over Brexit in the UK.