After a quiet day in Dublin, drama in the English High Court. But don’t get too excited…

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.”

That’s nice.

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

  • Kevin Breslin

    Has any case been made in the Scottish High Court … Maybe it could be used as a tie breaker?

  • mickfealty

    Advisory referendum versus a sovereign Parliament was hardly going to go any other way. A substantive motion will be enough, politics will take care of the rest.

    Tim Shipman was on Sean O’Rourke this am pointing out that just 600k voters were the difference between defeat and victory, for which the leaders of allRemain parties should take responsibility.

    Like any future border poll, it’s 50+1. Once seen, it cannot be unseen. Advisory or not.

  • hotdogx

    Well it’s like all of these political issues Mick. The truth doesn’t matter, it’s what a section of the community actually believes that is important, even if it’s completely wrong. Unionism has given us 100years of instability & division simply because their leaders were able to convince them and bring them in a particular direction like with Brexit & Nigel Farage

    The perception of Brexit will count for a lot & should bring Nats out to vote. The Dup or unionism general however rediculous & xenophobic they may be they’ll still get the votes, they have an emotional & religious attachment to Britain that can’t be reasoned with. If we are to get 50+1 the votes will have to come from elsewhere I think. It depends what Nat leader is at the helm & their credibility, will it be Gerry or will it be the Irish government?

  • Brian Walker

    The Scottish government may oppose HMG’s appeal in the Supreme Court

  • ted hagan

    Seems the Tories will be able to steamroller article 50 through the Commons without much trouble, despite the ruling, so that brought be down to earth, sadly.

  • Zorin001

    Yes but for one brief moment we got to see the Leavers throw the toys out of the pram and show their devotion to Parlimentary sovereignty was bunk, so i’ll enjoy what I can.

  • terence patrick hewett

    Phoenix Park!
    Phoenix Park!
    Does it not have the relevance of the old Aardvark,
    But don’t thinksoever that Dublin can’t share,
    Of Reading Gaol and Merrion Square.

    Will the Brexit turn Irexit,
    Ian Dury cannot tell,
    But Ian Dury led to fury,
    The toll ask’s not the bell.

    Will the Brexit turn Irexit,
    You’d best ask Dr Fell,
    Ev’ry side will try to sexit,
    And we can go to hell.

    Time and tide and buttered eggs wait for no man.

    The wolves are running.

    Accompanied by the Bodhrán and the Lambeg.

  • MainlandUlsterman

    People are making a big fuss about the triggering of Article 50, but does it really matter? It’s going to be triggered anyway. The only question is whether by constitutional precedent the executive can just do it off the back of the referendum, or needs to go through parliament for. The referendum obliges parliament to leave the EU and that means triggering Article 50, It’s only a matter of when.

    If there was much to be gained from delay, then I could see it being worth arguing for parliament to have a say. But there isn’t – the longer it takes for Brexit to be sorted, the worse for both our economy and that of Europe as a whole. The remaining EU members are keen for us to get on with it now the decision has been taken.

    Where it IS massively important for parliament to have a big say is in the manner of the Brexit arrangements we negotiate, the future trade deals after Brexit etc. But the triggering of Article 50, while a hugely significant milestone, isn’t the main event, or even any event per se to pour a lot of politics into.

  • MainlandUlsterman

    I got the wrong end of the stick entirely on this – I should have listened to the news! Apologies for any confusion.

  • Kevin Breslin

    Just to claify a case was taken in the Northern Ireland High Court and the English High Court.

    Scottish High Court quiet on this matter.

    Was not talking about the Scottish National Party and the case in England.

  • Kevin Breslin

    There’s a Third High Court though, isn’t there?

  • WindowLean

    Why is the government bothering to appeal this then, surely the best that can happen is a possible further delay?? Why not go for a quick vote in the Commons in the next couple of weeks to pass the March 2017 A50 timeframe? One of my perceived weaknesses in May, Fox and Davis is that they’re not too good at thinking on their feet, so went for the knee jerk appeal?

  • WindowLean

    I can now answer my own query, it appears an Act of Parliament will be required to trigger A50 if the judgement stands, according to that eejit David Davis anyway, so that’s why they’re appealing it.


    It is not surprising the Scottish Nat sis and Sinn Fein Nat sis oppose Brexit. Both are tied up in spending taxpayers money for unessesary beaurocracy. The legal profession will lose millions when we leave and it is little wonder the Three Judges voted on behalf of the remainers.

  • lizmcneill

    Yes, so much for sovereignty, eh? The true face of Brexit unmasked.

  • eamoncorbett

    When negotiations are in train almost every aspect of the talks will have to be approved by the German government . Germany’s imprimatur will be needed on every document agreed and they will be the most difficult , truculent and self centred party in these discussions . A lot of ancient animosities will no doubt surface during the late night debates that Brexit will induce . Britain should not expect a great deal from those guys , it’s not in their nature to be generous . The EU of the last 20 years has been largely shaped around their vision of Europe and they will not take too kindly to anyone denting that vision. I expect France and Italy to make substantial submissions along with the rest , but is the paymaster who will eventually have to satisfied with any agreed settlement . I wouldn’t envy the task Britain faces negotiating with Germany even if the other 27 didn’t show up.

  • Katyusha

    Can’t Parliament block the passage of Article 50 until concessions on the UK’s negotiating position are granted, or seek to have their own interests legislated for as part of the bill that triggers Article 50?

  • Katyusha

    Well, thank God for this.
    Not because of anything to do with Brexit, but because it reaffirms that the PM and Cabinet is subservient to both the law, and to Parliament, and the Prime Minister and her cabinet ministers cannot simply act unilaterally. To allow otherwise would be to allow for tyranny.

  • nilehenri

    the longer the brexit debacle goes on the worse it is for everybody, you mean to say. your future trade deals will be with thirty countries trying to get them to take a unanimous decision. good luck with that. you might want to google ‘canada and the eu’ to get an idea of the timeframe. as for the remaining eu members, brexit isn’t actually that high up on the agenda, i believe that they are deliberately playing it down for fear of unrest in their respective territories, with the added bonus of weakening england’s position.
    brave little blightly is on it’s own it seems. or half of it or a quarter of it depending upon your political views. it’s looks like it’s curtains for the union as we know it, (the little union that is, not the big one). may you live in interesting times. indeed.

  • MainlandUlsterman

    It is grim. But at least the courts are keeping May et al from completely trampling over parliamentary democracy, that’s one crumb of comfort. But the press are making this very ugly. Some of them are just a disgrace.

  • the rich get richer

    Best to have a general election .

    Surely Theresa May won’t bottle it like Bottler Broon .

    She surely has to go for it in the Spring .

  • mickfealty

    Don’t you wish now the Telegraph and the Mail had read your wise counsel before going off at the deep end. Crazy people in charge there.

  • nilehenri

    the press aren’t putting the words in the mouths of the politicians, some have called for the sacking of the judges in question. a better option would be to take them out the back and garrote them like in the good old days, it would be much more in keeping with current political practice in whitehall.

  • Reader

    nilehenri: you might want to google ‘canada and the eu’ to get an idea of the timeframe.
    Photocopier and tippex. Plus – no Walloons to worry about. Should take about a month.

  • Skibo

    hahaha you should be so lucky. Point me in the direction of any agreement that was done in a month. Shortest would probably be two years.

  • Skibo

    Agreed. The UK joined with an Act of Parliament and so should require an act to leave.

  • nilehenri

    it takes me about a month just to find the tippex. enjoy your banana r̶e̶p̶u̶b̶l̶i̶c̶ sovereignty.