WEBVTT - U.K. High Court Rules on Path Forward for Brexit (Audio) 0:00:00.040 --> 0:00:03.559 The UK Supreme Court ruled today that Parliament must act 0:00:03.680 --> 0:00:07.040 before Prime Minister Theresa May can begin negotiations to leave 0:00:07.120 --> 0:00:11.080 the European Union. The ruling complicates the process of Brexit, 0:00:11.520 --> 0:00:14.520 which was approved by UK voters in June, but May's 0:00:14.520 --> 0:00:16.920 government says it still plans to start talks with the 0:00:16.920 --> 0:00:20.520 EU by the end of March. Here is Lord David Newburger, 0:00:20.600 --> 0:00:23.640 President of the Supreme Court, announcing the eight to three 0:00:23.720 --> 0:00:28.760 ruling today. The referendum is of great political significance, but 0:00:28.840 --> 0:00:32.159 the Act of Parliament which established it did not say 0:00:32.280 --> 0:00:35.680 what should happen as a result. So any change in 0:00:35.720 --> 0:00:38.879 the law to give effect to the referendum must be 0:00:39.000 --> 0:00:42.600 made in the only way permitted by the UK Constitution, 0:00:43.360 --> 0:00:47.839 namely by an Act of Parliament. With us to discuss 0:00:47.840 --> 0:00:50.440 the ruling as well as its implications for Brexit and 0:00:50.560 --> 0:00:54.320 UK constitutional law are Michael Gordon, professor at the University 0:00:54.320 --> 0:00:57.680 of Liverpool and Stephen Piers, professor at the University of 0:00:57.760 --> 0:01:03.240 exit Essex. Welcome to you both, Thanks for joining us. 0:01:03.440 --> 0:01:06.679 Mike in a nutshell, what was the core of the 0:01:06.840 --> 0:01:11.880 reasoning of the UK Supreme Court majority today? Okay, so 0:01:11.920 --> 0:01:14.080 the so the core of the reason today on the 0:01:14.200 --> 0:01:16.840 on the primary conclusion at least that there's a need 0:01:16.880 --> 0:01:19.600 for an Act of Parliament to authorize the government beginning 0:01:19.640 --> 0:01:22.120 that process as a negotiation of our of our exit 0:01:22.160 --> 0:01:24.040 from the EU, and the under Article fifty of the 0:01:24.080 --> 0:01:29.000 European Treaties was that in domestic terms, EU law is 0:01:29.160 --> 0:01:31.800 what the majority called almost a new source of law 0:01:32.280 --> 0:01:36.479 in the UK Constitution. And what the majority has concluded 0:01:36.959 --> 0:01:39.200 is that the government's royal prerogative powers, the sort of 0:01:39.240 --> 0:01:42.920 powers that the government possesses to conduct international relations and 0:01:43.040 --> 0:01:47.000 ratify treaties, can't be used to cut off a new 0:01:47.080 --> 0:01:49.440 source of law, as they call it, that the nineteen 0:01:49.520 --> 0:01:52.160 seventy two European Communities Act, an act of Parliament that 0:01:52.200 --> 0:01:55.280 brought us into the EU, has established. So it's quite 0:01:55.280 --> 0:01:57.400 it's quite an interesting argument about EU law being this 0:01:57.480 --> 0:01:59.520 sort of this new source of law and the UK 0:01:59.520 --> 0:02:03.320 Constitute and then saying that the legislation of Parliament in 0:02:03.360 --> 0:02:07.040 nineties two and legislation since then dealing with changes to 0:02:07.120 --> 0:02:12.240 our EU membership, haven't you know, hasn't given the government 0:02:12.320 --> 0:02:13.760 hasn't left the government with the power and of the 0:02:13.800 --> 0:02:16.760 royal prerogative to sort of begin that process of withdrawal, 0:02:16.760 --> 0:02:19.720 which they say is different from just change to the treatise, 0:02:19.760 --> 0:02:22.560 which the Act allows. The process of withdrawal, they say 0:02:22.560 --> 0:02:24.400 will be would be different because it would cut off 0:02:24.440 --> 0:02:26.959 this new source of law. That's the essential argument of 0:02:26.960 --> 0:02:30.519 the majority today, Stephen, there were three in the minority. 0:02:30.800 --> 0:02:37.080 What was their argument, Well, they started the more traditional view, 0:02:37.200 --> 0:02:40.480 which is that the government's power to sign up to 0:02:40.560 --> 0:02:44.720 treatise and announced treaties isn't limited, at least in this 0:02:44.800 --> 0:02:49.079 case by Epean community. That because it would still stay 0:02:49.080 --> 0:02:51.880 on the books, and it even though it didn't create 0:02:51.919 --> 0:02:58.200 any legal effects, perhaps it would. Nevertheless, the minority felts 0:02:58.520 --> 0:03:01.280 they wanted to give precedence to the government's power to 0:03:01.320 --> 0:03:03.960 act over Parliament's powered. Sort of. There are two rules 0:03:04.000 --> 0:03:08.080 really in conflict with each other here, whether whether you 0:03:08.120 --> 0:03:10.519 give precedence to the government's power to act or treaties 0:03:10.800 --> 0:03:13.480 or parliament's power to change its previous Act of Parliament. 0:03:14.000 --> 0:03:17.800 And the majority went with the parliament's power having precedents. 0:03:17.840 --> 0:03:22.239 That minority went with the government's power having precedents. This case, 0:03:22.240 --> 0:03:24.960 of course, was on appeal a lower court. The UK 0:03:25.080 --> 0:03:28.480 High Court had had also ruled that Parliament had to 0:03:28.520 --> 0:03:31.800 act that was a few months ago. Are there material 0:03:31.840 --> 0:03:35.760 differences between what the Supreme Court said today and what 0:03:36.040 --> 0:03:40.480 the High Court said a few months ago? Yeah, I 0:03:40.520 --> 0:03:42.280 think there are. I think I think this this sort 0:03:42.320 --> 0:03:44.640 of line about a new source of law. EU law 0:03:44.720 --> 0:03:48.840 being recognized within the domestic UK constitutional system as a 0:03:48.880 --> 0:03:50.800 new source of law does does sort of mark a 0:03:50.880 --> 0:03:53.880 difference from what the what the Divisional Court has said. 0:03:54.360 --> 0:03:56.840 I don't think the majority in the Supreme Court today 0:03:56.840 --> 0:04:00.760 have necessarily moved away too dramatically from what the Divisional 0:04:00.760 --> 0:04:03.920 Court had said in and again reaching the same conclusions 0:04:04.720 --> 0:04:07.920 earlier before Christmas. But I think this argument about a 0:04:07.920 --> 0:04:10.640 new source of law, it's potentially quite a novel one, 0:04:10.640 --> 0:04:13.440 but it's also potentially quite controversial. I think it's I 0:04:13.480 --> 0:04:16.080 think it's it's quite It's interesting that only now we 0:04:16.120 --> 0:04:18.720 are leaving the European Union as a result of the 0:04:18.760 --> 0:04:21.600 referendum vote, has the Court felt able to make quite 0:04:21.640 --> 0:04:24.840 strong claims about EU law being itself a source of 0:04:24.920 --> 0:04:28.599 law in the Constitution. Obviously, the Act of Parliament that 0:04:28.640 --> 0:04:31.440 brought us into the EU is still the crucial underpinning 0:04:31.480 --> 0:04:33.560 for that. But I think this this argument about EU 0:04:33.600 --> 0:04:36.040 law being a new sources is different. Perhaps the other 0:04:36.080 --> 0:04:39.039 difference as well is that the Supreme Court seems to 0:04:39.040 --> 0:04:42.280 have moved away from some of the bigger constitutional claims 0:04:42.320 --> 0:04:46.080 that the Divisional Court made about, say the constitutional status 0:04:46.120 --> 0:04:48.000 of the Act of Parliament that took us into the 0:04:48.400 --> 0:04:50.440 into the into the European Unions. So there are some 0:04:50.520 --> 0:04:53.720 materials and some quite interesting differences, I think, even though 0:04:53.760 --> 0:04:58.040 the result is the same. Stephen lawmakers, including some within 0:04:58.200 --> 0:05:02.400 Maze Conservative Party, are talking about amending Article fifty, with 0:05:02.520 --> 0:05:06.279 some roadblocks such as calling for a so called white paper. 0:05:06.720 --> 0:05:12.560 Tell us about those, yes, well, especially the three bigger 0:05:12.560 --> 0:05:15.880 opposition parties, the Liberals of the Scottish Nationalists and the 0:05:15.920 --> 0:05:18.800 labor parties have all said their proposed amendments, and I 0:05:18.800 --> 0:05:21.120 think at least a few Conservatives will go along with them. 0:05:21.720 --> 0:05:24.440 So yeah, if you get a majority, if you get 0:05:24.440 --> 0:05:27.400 about ten Conservatives jumping over and all the opposition together, 0:05:28.240 --> 0:05:30.960 you would have a majority in the House of Commons 0:05:30.960 --> 0:05:33.200 to push to an amendment. So the sort of things 0:05:33.240 --> 0:05:37.520 that tabling are different between the different parties. But there 0:05:37.560 --> 0:05:39.400 are things like a white paper, as you said, so 0:05:39.520 --> 0:05:41.880 we have a prior discussion before we go ahead and 0:05:41.839 --> 0:05:45.880 in Vogue articles fifty. It's things like reporting regularly back 0:05:45.880 --> 0:05:49.120 to Parliament about the negotiations. It's the Liberals want to 0:05:49.120 --> 0:05:51.720 have a new referendum later on, and maybe the Scottish 0:05:51.800 --> 0:05:55.000 Nationalists as well, and that's I think would be hard 0:05:55.000 --> 0:05:57.479 to get enough votes for that. That's a crucial one. 0:05:57.680 --> 0:05:59.120 And some of them want to stay in the East 0:05:59.120 --> 0:06:01.560 Single Market, which you can still do as a non 0:06:01.560 --> 0:06:05.799 EU country. Um so that might be a big issue 0:06:05.800 --> 0:06:09.479 as well if they have enough for that, Mike. Much 0:06:09.480 --> 0:06:11.360 like in this country, with a lot of things going 0:06:11.440 --> 0:06:14.479 with Donald Trump, they're the politics of various issues have 0:06:14.520 --> 0:06:19.120 sort of been scrambled. Is there a Conservative Labor split 0:06:19.200 --> 0:06:22.800 on these issues that that Steve was talking about or 0:06:23.040 --> 0:06:25.159 are these all issues that kind of kind of cross 0:06:25.240 --> 0:06:30.920 the parties. I mean, I think there are very clear Well, 0:06:30.960 --> 0:06:33.960 there are differences in position between the Conservative government and 0:06:33.960 --> 0:06:35.800 the Labor Party. I think one of the things the 0:06:35.839 --> 0:06:38.720 Labor Party is finding it particularly difficult to quite pin 0:06:38.839 --> 0:06:42.039 down in relation to its attempts to hold the government 0:06:42.040 --> 0:06:45.200 to accounts, are how you get that balance that between 0:06:45.440 --> 0:06:47.560 putting in the kind of amendments to this bill that 0:06:47.600 --> 0:06:50.560 Steve was was just talking about, you know, amendments that 0:06:50.560 --> 0:06:54.719 that perhaps make the process of the government negotiating Brexit 0:06:54.880 --> 0:06:57.919 a little bit more difficult. Try to sort of upsloot 0:06:57.960 --> 0:06:59.680 will be the wrong word, but but certainly try to 0:06:59.680 --> 0:07:03.360 conde and control that legally. And also then the Labor 0:07:03.360 --> 0:07:06.120 Party's stated recognition that they want to give effect to 0:07:06.200 --> 0:07:08.120 the terms of the referendum, they don't want to be 0:07:08.160 --> 0:07:11.240 seen to be obstructing the triggering of Article fifty. So 0:07:11.280 --> 0:07:14.520 that's quite a delicate balance for them for them to tread. 0:07:14.760 --> 0:07:17.120 And again within you know, within the Conservative Party that 0:07:17.240 --> 0:07:20.880 the government's majority is relatively narrow, so it doesn't take 0:07:20.920 --> 0:07:23.880 too many Conservatives who would perhaps have preferred to remain 0:07:23.920 --> 0:07:26.920 in the European Union, of which there are some, if 0:07:26.960 --> 0:07:29.520 not many, but it doesn't take too many of them 0:07:29.760 --> 0:07:32.000 to sort of to vote to vote with the opposition 0:07:32.040 --> 0:07:35.000 perhaps to try and get some tractions these members. But 0:07:35.000 --> 0:07:37.800 it's very unclear because of course, I think all the 0:07:37.800 --> 0:07:41.200 parties that was a vote in Parliament previously, that Parliament 0:07:41.280 --> 0:07:43.800 and the House of Commons committed. We're talking about today's 0:07:43.920 --> 0:07:47.360 UK Supreme Court decision requiring an Act of Parliament before 0:07:47.800 --> 0:07:52.160 Prime Minister Theresa May can start Brexit negotiations. UK Brexit 0:07:52.240 --> 0:07:55.080 Secretary David Davis moved quickly to try to douse any 0:07:55.120 --> 0:08:00.560 speculation that the ruling might derail Brexit. This ugment does 0:08:00.640 --> 0:08:03.320 not change the fact that the UK we leave in 0:08:03.360 --> 0:08:06.080 the European Union and it's our job to deliver on 0:08:06.160 --> 0:08:09.880 the instruction the people of UK have given us. We're 0:08:09.880 --> 0:08:12.000 talking with Michael Gordon, a professor at the University of 0:08:12.040 --> 0:08:16.080 Liverpool and Stephen Piers, a professor at the University of Essex. 0:08:16.800 --> 0:08:22.200 Steve Um, I gather that the UK Supreme Court didn't 0:08:22.280 --> 0:08:27.840 decide whether Article fifty is revocable. Um, you tweeted about that, 0:08:27.840 --> 0:08:30.080 and I want to ask you about the significance of 0:08:30.640 --> 0:08:34.720 that silence. Is there a possibility that once it is triggered, 0:08:35.120 --> 0:08:41.680 that Britain may may change its mind. Yes, I wouldn't 0:08:41.679 --> 0:08:45.760 say it's a big possibility, but certainly some people believe 0:08:45.880 --> 0:08:48.600 that it's something they want to keep pressing for and 0:08:49.120 --> 0:08:51.720 arguing that maybe we should have another referendum, more vote 0:08:51.720 --> 0:08:55.400 of Parliament on on that issue. Of course, it's an 0:08:55.400 --> 0:08:58.679 important legal question whether it is even possible to revoke 0:08:59.240 --> 0:09:03.280 the notice once it's sent, and it is very interesting 0:09:03.280 --> 0:09:07.680 the Supreme Court was deliberate in saying we don't take 0:09:07.720 --> 0:09:10.120 a view on that. Even though the parties to the 0:09:10.200 --> 0:09:14.240 case decided that it was irrevocable. The Film Court said, well, 0:09:14.600 --> 0:09:17.120 we're not going to decide that. The importances of that 0:09:17.240 --> 0:09:20.680 is that there's another case about should be brought, strangely 0:09:20.760 --> 0:09:23.960 enough in the Irish Courts asking the Irish Courts to 0:09:24.000 --> 0:09:27.960 ask the U Court on whether Articles fifty is revocable. 0:09:27.960 --> 0:09:29.960 So there are certainly people out there, and I'm sure 0:09:30.000 --> 0:09:32.559 there's a Preme Court knew about this who are planning 0:09:32.640 --> 0:09:35.800 somehow to try and get that question on to the 0:09:35.920 --> 0:09:38.720 argument either way, of course, and if it is revocable, 0:09:39.040 --> 0:09:41.000 it doesn't need politically that it's going to happen that 0:09:41.040 --> 0:09:42.320 he could do a vote, but I think it does 0:09:42.720 --> 0:09:46.000 change the political dynamics knowing the possibility is always there 0:09:46.440 --> 0:09:51.640 to revoke the Article fifty notice is afterwards sent Mike. 0:09:51.720 --> 0:09:56.240 We were talking about amendments to Article fifty earlier, and 0:09:56.400 --> 0:09:59.920 for May's critics, after she pledged last week to leave 0:10:00.080 --> 0:10:03.520 the e Use Single Market to win control of immigration 0:10:03.600 --> 0:10:07.960 and lawmaking, essentially a so called hard Brexit, did that 0:10:08.080 --> 0:10:15.920 lead them to consider amendments even more. I suspect it will. 0:10:16.040 --> 0:10:19.760 I suspect that, having heard Theresa May's plan, or so 0:10:19.880 --> 0:10:21.600 far as it is a plan, in her speech last week, 0:10:21.640 --> 0:10:25.600 at least her identification of her negotiating priorities, I suspect 0:10:25.640 --> 0:10:30.319 that will raise the stakes for those parties who who 0:10:30.320 --> 0:10:32.559 are who are opposed to Brexit, you know, I mean, 0:10:32.559 --> 0:10:35.200 I suspect many of them would have tried to advance 0:10:35.240 --> 0:10:38.120 the kind of amendments were likely to see anyway, Whether 0:10:38.160 --> 0:10:40.640 it means that those amendments in the context of Theresa 0:10:40.679 --> 0:10:44.000 May certainly going for quite a full blooded Brexit withdraw 0:10:44.080 --> 0:10:46.880 from the Single Market and probably from most aspects of 0:10:46.880 --> 0:10:50.160 the Customers Union as well. I suspect that will raise 0:10:50.240 --> 0:10:53.320 the stakes and perhaps go on a more support for 0:10:53.400 --> 0:10:57.199 those amendments. Stephen, There's one other aspect of the ruling 0:10:57.240 --> 0:10:59.160 I want to ask you about. The courts said that 0:10:59.280 --> 0:11:01.640 Theresa May did not need to consult with the regional 0:11:01.640 --> 0:11:06.599 governments of Scotland, Wales in Northern Ireland. How significant is 0:11:06.640 --> 0:11:11.120 that part of the ruling. Well, in one way it 0:11:11.640 --> 0:11:15.480 lets her off the hook because Scottish Parliament would certainly 0:11:15.559 --> 0:11:18.280 have voted against it. In all of an Ireland Parliament 0:11:18.360 --> 0:11:19.839 is sort of suspended at the moment. It's not quite 0:11:19.880 --> 0:11:22.920 clear when we'll get it back because a separate political crisis. 0:11:22.920 --> 0:11:24.959 There is not quite clear whether the Welsh government will 0:11:25.000 --> 0:11:26.280 go along with it either, because they have their own 0:11:26.559 --> 0:11:31.480 plans they announced yesterday which don't really match the truth 0:11:31.559 --> 0:11:34.640 Amazed plan. So she's avoided all of that. But the 0:11:34.720 --> 0:11:38.800 way in which Supreme Court decided that, I think creates 0:11:38.960 --> 0:11:42.040 further political problems of a different sort, because it's said 0:11:42.760 --> 0:11:46.200 basically that Scotland and Wales and Northern Ireland can ignored, 0:11:46.320 --> 0:11:49.840 and given that Scotland and Orban Islands voted to stay, 0:11:50.000 --> 0:11:52.240 and given that to the Welsh government's taking a different 0:11:52.280 --> 0:11:56.320 view from the Wesdensity government, it's obviously going to irritates 0:11:56.360 --> 0:12:00.079 them a great deal. And obviously the Scotts government, particul that, 0:12:00.200 --> 0:12:03.800 being a Scottish nationalist government, is going to try and 0:12:04.080 --> 0:12:07.080 use this as part of it political arguments to try 0:12:07.080 --> 0:12:10.359 again for Scottish independence. It doesn't mean they will get 0:12:10.520 --> 0:12:13.600 anywhere on that, but it's certainly an argument they can 0:12:13.640 --> 0:12:16.040 try and make. So it sounds like she may have 0:12:16.160 --> 0:12:20.719 some political reasons to consult with those regional governments, even 0:12:20.760 --> 0:12:23.960 if she doesn't isn't legally required to do it. I 0:12:24.080 --> 0:12:27.400 want to thank our guests Michael Gordon at the University 0:12:27.400 --> 0:12:31.640 of Liverpool and Stephen Pierce at the University of Essex. Uh. 0:12:31.679 --> 0:12:33.960 That's a word I keep having trouble saying today. They 0:12:34.000 --> 0:12:36.120 are two people we always rely on when we have 0:12:36.240 --> 0:12:39.560 developments in the court fight over Brexit in the UK.