Speaker 1: Remember when UK Prime Minister Theresa May said this Brexit
Speaker 1: means brexit and we're going to make a success of it.
Speaker 1: But apparently there are more questions than answers about what
Speaker 1: Brexit actually means and how to trigger it. On December five,
Speaker 1: eleven judges will hear the case over whether May can
Speaker 1: trigger an exit from the EU without a vote of Parliament.
Speaker 1: One of those judges, Brenda Hale, gave a speech to
Speaker 1: law students in Malaysia last week and said the UK
Speaker 1: may need comprehensive legislation to start the process of leaving
Speaker 1: the EU, possibly delaying Brexit for years. She was immediately
Speaker 1: criticized by pro Brexit lawmaker Douglas Carswell for having made
Speaker 1: her mind before the trial, but the Supreme Court said
Speaker 1: Hale was simply presenting arguments on both sides of the
Speaker 1: appeal and didn't give any views on the outcome of
Speaker 1: the case. Our guest is Stephen Peers, a professor at
Speaker 1: the University of Essex School of Law. Stephen, I take
Speaker 1: it that Supreme Court justices in the UK are not
Speaker 1: used to their speech is being publicized as they are
Speaker 1: here in the US. But what do her comments reveal
Speaker 1: if anything. Well, I read the whole speech, and she
Speaker 1: was giving arguments of foreign against was trying to summarize
Speaker 1: everything that everyone was saying and weighs a lot of
Speaker 1: different possibilities. So I don't think she was saying for
Speaker 1: sure that had to be comprehensive legislation. But I think
Speaker 1: if the government tried to get away with anything short
Speaker 1: of legislation, then it's likely to go back to the courts.
Speaker 1: So I imagine now what they'll try and do is
Speaker 1: push through some very short legislation. Stephen, how long do
Speaker 1: you think the delay is likely to be if the
Speaker 1: court does say that Parliament has to act, Well, I
Speaker 1: imagine the government will propose legislation almost immediately and say
Speaker 1: that it has to be passed almost the same day
Speaker 1: or the next day of Parliament needs whenever, that is
Speaker 1: in December or January, and will see if they go
Speaker 1: on with that. And the main opposition party says it
Speaker 1: will push things through, but then it has to go
Speaker 1: to our House of Lords here, and there might be
Speaker 1: other members of Parliament who don't want to push things
Speaker 1: through and find procedual means to delay it, so it
Speaker 1: might take a few months. If people want to add
Speaker 1: things to and debated at length. I suspect they will.
Speaker 1: It will probably be a few days in the end.
Speaker 1: And Stephen, is there a sentiment that the people in
Speaker 1: the UK have changed their mind about Brexit? I mean,
Speaker 1: there was a lot of controversy the day after when
Speaker 1: people didn't seem to you know, we're googling what Brexit
Speaker 1: means and what the EU is. So is there a
Speaker 1: sentiment that it's it's not quite what the people want
Speaker 1: and that Parliament might vote against it. Well, when you
Speaker 1: see opinion polls, there seems to have been a slight
Speaker 1: shift back to the remain side, and that might be
Speaker 1: just enough if they were the afferendum that went a
Speaker 1: different way, the different way, But I don't think there
Speaker 1: are enough votes in Parliament to hold another reperendum again,
Speaker 1: which is obviously what you need, and that maybe a
Speaker 1: ye or two down the road they'd be more interest
Speaker 1: in that, but at the moment it doesn't seem very likely. Well, Stephen,
Speaker 1: are are there conditions that Parliament might try to put
Speaker 1: on the on the legislation that would be problematic for
Speaker 1: the government if a number of EMPs would like to
Speaker 1: do that. Although the main opposition party says it won't
Speaker 1: and try it, says a bell, try and influence things later.
Speaker 1: So there will be a battle I think among a
Speaker 1: few EMPs and maybe some members of the House of
Speaker 1: Lords to try and set conditions the government. I think
Speaker 1: it's going to try a procedural argument that no amendments
Speaker 1: are allowed to this very short bill. But we'll see
Speaker 1: if the Speaker of the House of Commons of the
Speaker 1: House of Lords allow the amendments to be debated, and
Speaker 1: how likely they are to go through. I think that
Speaker 1: the place to watch as the House of Lords, which
Speaker 1: is more independent and where I think there's a little
Speaker 1: there's a little bit of a chance of someone amendments
Speaker 1: being put through. The BBC is reporting that the government
Speaker 1: is preparing legislation so that if the government loses the
Speaker 1: Supreme Court appeal, this will be ready, and that the
Speaker 1: bill is just three lines long and tightly drawn, which
Speaker 1: would I suppose make it difficult for lawmakers to amend it. Yes,
Speaker 1: that's right. I mean my understanding is that the rules
Speaker 1: are that the screening first of all as to whether
Speaker 1: amendments are allowed, but then it goes to the floor
Speaker 1: of the House of Commons and they vote on whether
Speaker 1: or not to allow the amendments, and the Speaker has
Speaker 1: to say as well, So there will be that process
Speaker 1: of whether to consider the amendments in the first place.
Speaker 1: And I imagine the government would have enough votes in
Speaker 1: the House of Commons with the opposition support not to
Speaker 1: consider amendments. But in the House of Lords the government
Speaker 1: doesn't have a majority. There are lots of people who
Speaker 1: aren't affiliated to any party, or a lot of people
Speaker 1: who don't want Brexit there, so I think, as a said,
Speaker 1: there's a bit better chance of amendments being considered and
Speaker 1: it maybe even being supported in the House of Lords. Stephen,
Speaker 1: the government put out a statement on Friday of last
Speaker 1: week describing what its appeal is likely to look like.
Speaker 1: Did we learn anything from that and and regardless, give
Speaker 1: us a sense of what the basic argument the government
Speaker 1: is going to be making to the UK Supreme Court. Well,
Speaker 1: the government basically was one page summary and there wasn't
Speaker 1: much there. But basically, the argument that's gone to court
Speaker 1: is between two conflicting principles of our British constitutional law.
Speaker 1: So on the one hand, the government has power of
Speaker 1: foreign affairs and this is an act of announcing the treaty,
Speaker 1: so that's foreign affairs, so the executive ought to be
Speaker 1: able to do that. So that's one principle. The other
Speaker 1: principle is that the government's power over foreign affairs can't
Speaker 1: be used to remove rights which Parliament has granted. And
Speaker 1: in Britain real dualist maybe have international law separate from
Speaker 1: national law. So the rights that come from el are
Speaker 1: set out in an Act of Parliament. And so that's
Speaker 1: where the second argument comes in. It's that the government
Speaker 1: can't remove these rights in the Act of Parliament by
Speaker 1: denouncing the treaty which is linked to the Act of
Speaker 1: Parliament and liberate is exactly which of these two rules,
Speaker 1: which are conflicting, takes priority in this case, Stephen, who
Speaker 1: has the better side according to your view of the law?
Speaker 1: I think it's it's roughly fifty fifty to be a
Speaker 1: little bit evative. But on the if, I certainly the
Speaker 1: claimants that people criticize in the government, I think their
Speaker 1: argument is stronger from the point of view of the
Speaker 1: underlying logic of the British Constitution, which is parliamentary supremacy.
Speaker 1: Above all, we don't have a constitution that takes priority
Speaker 1: like America and many other countries. Instead, we have parliamentary
Speaker 1: sovereignty as the basic group. And if that's the basic group,
Speaker 1: then I think any if there's any doubt or any ambiguity,
Speaker 1: you should come down on the side of Parliament, not
Speaker 1: the executive. Well, Stephen, how long can we expect before
Speaker 1: the court decides how this should happen? Well, they're hearing
Speaker 1: it a which or so into December, and then some
Speaker 1: people assuming it might come out just before Christmas, something
Speaker 1: like Friday twenty even. You can imagine that right before Christmas,
Speaker 1: and I think it may be more likely to be
Speaker 1: a week or so into January. But really, if anyone's guests,
Speaker 1: and how long once this is done this stage, how
Speaker 1: long will the actual process take? I mean we're still
Speaker 1: looking at years. Well now, um, well, the problems to
Speaker 1: parts a bit. As I said, it might be very
Speaker 1: quick unless the House of Lords frustrates it. But then
Speaker 1: the process to leave the EU would be in principle
Speaker 1: two years from the date of giving notice, which might
Speaker 1: still be March if the government's plans stay on track,
Speaker 1: but that two years can be shortened or length and
Speaker 1: if this agreement so, it's hard to be sure in
Speaker 1: advantage there will be agreement, but I think the most
Speaker 1: likely scenario is that it will. It will be the
Speaker 1: two years, and so Britain would leave sometime in the
Speaker 1: spring of twenty nineteen.