It would be as well not to get over excited about this morning’s rejection in the English High Court of the UK government’s case that it can trigger Article 50 without the consent of Parliament. The show isn’t over yet; the denouement was always likely to be played out at the top. The government will appeal to the Supreme Court which is also expected to deal with the equivalent Northern Ireland appeal at the same time, after the Belfast High Court decided in favour of the government, that there was nothing in the GFA to prevent the government triggering Article 50. In view of the overlap with the case before the English High Court, the judge in Belfast limited himself to the GFA arguments and ruled:
It is therefore, in the court’s opinion, inapt for the applicants to talk in terms of notification changing the rights of individuals or of the operation of institutions becoming transformed by reason of the invocation of Article 50(2). This simply will not happen by reason of the step of notification per se. The reality is, at this time, it remains to be seen what actual effect the process of change subsequent to notification will produce. In the meantime, sections 6 and 24 of the 1998 (NI)Act will continue to apply; the North/South and East/West institutions will continue to operate; and the work of implementation bodies will go on.
While the wind of change may be about to blow the precise direction in which it will blow cannot yet be determined so there is a level of uncertainty, as is evident from discussion about, for example, how Northern Ireland’s land boundary with Ireland will be affected by actual withdrawal by the United Kingdom from the EU.
The court is not persuaded, for the purpose with which this judicial review is concerned, prerogative power has been chased from the field or that statutory power (in the form of the 1998 (NI) Act) has displaced it in accordance with the test described above. Rather, it is the court’s view the prerogative power is still operative and can be used for the purpose of the executive giving notification for the purpose of Article 50. This, however, is said without prejudice to the issues which have been stayed and which are under consideration in the English courts.
While today’s London ruling will give a fillip to Remainers and is an undoubted setback to the government, Mrs May is still likely to win any key Common votes, as a defeat would surely mean the government’s collapse and by some means or other, a general election which the Conservatives would surely win.
What it more likely is a much longer political argument on the timing of the trigger before the end of next March. The government might be forced to declare its Brexit hand more openly. But while this would greatly add to the churn over Brexit, the constitutional arguments in court are in a sense a huge red herring in relation to the final outcome.
Even so the Supreme Court judgment will surely be the most notable in its existence, as a different decision would mean overturning a very clear ruling in the lower court, which was delivered by the Lord Chief Justice. So the odds in favour of the government in the short term may have lengthened.
I wasn’t able to stick with the live feed of the Great Civil Dialogue in Kilmainham Hospital but Miriam Lord’s sketch assures me I missed little except lunch. This verdict gave the DUP’s chief heckler Sammy Wilson his all too predictable opening.
Enda’s opening remarks continued to dominate the coverage the next morning. The FT (£) picked out his fears of a smash between the UK and EU 26 in which Irish concerns would get lost. He raised the spectre of a “vicious” negotiation, with the UK triggering Article 50 before Christmas- a delayed Halloween fright I hadn’t heard before. Today’s ruling in the London High Court at least seems to knock that one on the head. Turning to his fellow European leaders…
“Europe has got to decide for itself in these [UK exit] negotiations where it wants to be in the next 50 years. If it becomes obsessed with what the UK might or not get, then Europe itself loses the plot.”
It is highly unusual for an Irish prime minister to chide his European counterparts in such a way. But Mr Kenny’s comments reflect growing frustration in Dublin at UK-EU tensions over Brexit and the danger of London and Brussels overlooking the destabilising impact on the island of Ireland.
Dublin is struggling to prevent London and Brussels from edging towards a “hard” Brexit, which could damage the Irish economy if the UK were to leave the single market and the EU customs union. The UK is Ireland’s single biggest trading partner, with €1.2bn crossing the Irish Sea each week.
Enda’s moment of excitement over, the field was left to the caterers, at least according to Miriam.
At least they didn’t have to listen to the Great Brexit Speak-Off, in all its wordy worthiness. “The representatives from the North are delighted to be able to talk about what it means to them. Nobody is listening to them up there,” a Government official confided. “It’s great for them to have people listening to their views and concerns.”
After buns, the representatives spoke for a couple of hours about their interests in a cross-Border, inclusive way, then broke for coffee.
They spoke for another couple of hours, then broke for lunch.
The live broadcast was cut at a crucial moment, as Tom was outlining some important information. “Lunch is downstairs in the vaults,” he told the 300, but the screen went blank before he explained the exact location of the “two serving stations”.
The unionists missed out on all this by not attending. Even the lure of a premises called “the Royal Hospital” and the presence of a gallery of oil paintings of ancient British monarchs couldn’t get them to attend. Perhaps had they been told King Billy was there in all his pomp them might have relented.
Anyway, the Taoiseach committed himself to an “ongoing civil dialogue”. It was all very polite.
Gerry Adams said we must seek special “designated status” for the North. Like Parmesan cheese or the Waterford blaa.
The Greens’ Eamon Ryan got emotional (does that make him the thinking southside woman’s Mick Wallace?) about Brexit. “It’s like a political divorce. Feels like divorce must feel. That’s how I feel, if I’m honest.”
The speakers applauded each other after every contribution. Tom Arnold, who is reasonable for a living, helpfully summed up the first session by remarking he felt the speeches adopted “the right tone”.
Enda was delighted with the chance to hear about “challenges and opportunities”.
Tom had the whole affair sussed. “There is a sense we need to move forward in a positive way.”
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London