As well as distorting domestic politics almost beyond recognition, Brexit evidently has the potential to distort one’s perception of time. Given all that has happened since, it is hard to believe that only two short years have passed since the Supreme Court’s judgment in the Miller case was being awaited with bated breath. When, on 24th January 2017, the Court held that the government could not trigger Article 50 unless and until parliament empowered it to do so, the judgment was hailed not only as a legal landmark but also as a potential inflection point in the politics of Brexit. A government that had been intent on denying parliament a say in the initiation of the withdrawal process suddenly found itself in the legislature’s hands, incapable of taking Brexit forward without parliamentary authorisation.
At that point, parliament in effect held all the cards. But it played its hand extraordinarily badly, and has been attempting, often ineffectually, to play catch-up ever since. The upshot is that the Miller case, for all that its outcome was pregnant with possibility, ended up as a victory sounding principally in the realm of constitutional symbolism, as distinct from that of political reality. This is not to deny that Miller addressed a set of fundamental legal questions. Nor is it to deny that Miller’s impact was felt in the political world. For one thing, the time consumed by the judicial process likely delayed the triggering of Article 50. For another, the judgment put the government to the trouble of getting legislation, empowering it to activate the withdrawal process, through parliament. The requirements of legal and constitutional propriety were thus, according to the Supreme Court, satisfied.
But as soon as the content of the legislation precipitated by Miller is examined through the prism of subsequent events, the judgment’s status as a political damp squib becomes hard to deny. If there was ever a time in the Brexit process when parliament had leverage over a government that has, throughout, been intent upon maintaining tight control, the period between the Supreme Court’s judgment in Miller and the enactment of the requisite legislation was it. At that point, parliament could have opted to put itself, at least to some extent, in the driving seat. It could, for instance, have legislated so as to give the government only contingent authority to trigger Article 50. The exercise of that power could have been made conditional upon the government presenting parliament with a set of negotiating objectives that met with parliamentary approval. Doubtless, it would have been difficult for parliament to agree upon what those objectives should have been, but at least this would have required the government to adopt a clear position, and would have enabled parliament to evaluate that position, at an early stage in the process—and, crucially, before the two-year Article 50 clock had begun to tick.
Such opportunities notwithstanding, parliament chose, when legislating in the aftermath of Miller, to write the government a blank cheque. Thus, the legislation, which consists of only one substantive section, baldly provided that: “The prime minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.” In writing this blank cheque, parliament paved the way for the unedifying process that has unfolded since Article 50 was triggered at the end of March 2017, throughout which a government riven by internal division has itself almost always lacked anything approaching a coherent negotiating stance on key issues.
It is against this background that we are obliged to view the “meaningful vote” and parliamentarians’ belated attempts to “take control” of the Brexit process. The 11th-hour insertion into the EU (Withdrawal) Act 2018 of the requirement for such a vote was doubtless significant. Without it, it is inevitable that parliament would not have found itself playing the role—albeit with effects that are yet to be seen—that it is now playing in the Brexit endgame. But it is undeniable that parliamentarians likely would not need to scramble around as they are at present if they had had the foresight to take charge two years ago, when the Miller judgment gifted them a golden opportunity to do so.
Of course, the reason for the dereliction of constitutional duty that parliament arguably committed in the aftermath of Miller is not hard to fathom. Against the then-recent backdrop of the referendum, the political cost of doing anything that appeared to be in opposition to Brexit was substantial—as the Division Court judges who heard the Miller case discovered when they were dubbed by one newspaper “the enemies of the people.” As such, there was considerable pressure on MPs to wave through the legislation, lest they be seen to be attempting to block Brexit. The product of these circumstances was legislation handing the government an unfettered power to trigger Article 50 long before it had developed, let alone articulated, a coherent negotiating position. Yet declining to write a blank cheque two years ago would not have meant that parliament was thwarting public opinion as expressed via the referendum. Rather, exercising control over the terms of departure prior to the firing of the Article 50 starting-gun would have enabled parliament to play an entirely appropriate role—namely, determining how the outcome of a cryptically binary referendum should have been reflected in a negotiation process in which legal, political and economic complexity were always destined to feature heavily.
The clamour emanating from Westminster this week is the sound of stable doors being closed long after the horses have bolted. Whether MPs are capable of recovering the situation remains to be seen. In particular, it remains to be seen whether parliament is capable of avoiding a no-deal Brexit—which is the default consequence of the triggering of Article 50 which parliament itself authorised. Needless to say, it is to be hoped that it can. But it is deeply regrettable that parliament finds itself playing catch up in this way as the cliff-edge approaches. In its Miller judgment, the Supreme Court handed parliament a golden opportunity. It is unfortunate, to say the least, that parliament unambiguously squandered it.
Mark Elliott is Professor of Public Law at the University of Cambridge
