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Analysis

May the Machiavelli

Legal loss has led to threefold political victory

by Brian Reading in London

Thu 2 Feb 2017

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Never presume those with whom you disagree are stupid – they may be smarter than you think. Theresa May, the British prime minister, is not stupid, but possibly Machiavellian. Last November the UK High Court ruled that the Westminster parliament must be consulted before May’s government can activate Article 50 of the Treaty of Lisbon and formally tell Brussels that Britain wants to withdraw from the European Union.

The 23 June referendum on leaving the EU was not binding. David Cameron, the former prime minister, failed to consider what would happen if the public voted in favour of Leave. Parliament is sovereign and must eventually have its say. The royal prerogative – residual executive powers once held by British monarchs – does not give May the right to go ahead without consulting the legislature.

On appeal the Supreme Court refused to reverse the November Article 50 ruling, and rightly so. This was certain when both parties told the court to assume that activating Article 50 was irrevocable. The Lisbon treaty failed to make clear whether this was the case or not. The Supreme Court accepted the assumption with misgiving. Only the European Court of Justice can rule on EU law, and that appeal process could take years.

Did May and her advisers believe their Supreme Court appeal would succeed? If activating Article 50 is irrevocable, the requirement of prior parliamentary approval was inevitable. Could the government have been so foolish? A Machiavellian view might conjecture that it was not – defeat in the courts amounted to a threefold political victory.

First, May championed the people against members of parliament and unelected peers in the House of Lords, many of whom presume to know better what is best for Britain. The Labour party is riven after its leader Jeremy Corbyn commanded his MPs to vote in favour of activating Article 50. Emily Thornberry, the shadow foreign secretary and an MP for a central London constituency that voted in favour of Remain, was just one of numerous senior Labour party members to defy Corbyn. The Conservative party was also divided, if less audibly so. MPs pretend to be representatives making up their own minds, but they know they must reflect their constituents’ wishes. If not, they lose their jobs. Meddlesome peers, mostly political placemen, dare not defy the people’s will.

Second, the early vote on activating Article 50 was May’s safest option. Postponing parliamentary approval would have been risky. If gloomy economic forecasts are vindicated, a ‘hard’ exit appears likely, and opinion polls swing to Remain, a later vote could have been lost.

Third, political representatives in Scotland and Northern Ireland fell into a trap. They intervened supposing the Sewel convention – a political principle which states that the UK parliament may only legislate on matters that are normally addressed by the devolved assemblies of Northern Ireland, Scotland and Wales if the latter consent – and the 1998 Northern Ireland peace agreement gave them the right to veto UK parliamentary decisions. The Supreme Court said this was not the case. The judges ruled that the national assemblies must be consulted, but retain no veto.

A ‘hard’ Brexit is inevitable and hurts all. The remaining 27 EU members won’t agree divorce terms by March 2019 or extend the deadline for negotiations. Michel Barnier, the European Commission negotiator, claims the UK faces a £60bn bill to leave. The Financial Times’ rigorous analysis says £20bn. And, while Britain’s legacy obligations are disputable, the shortfall left in the EU budget is not. Britain is a major financial contributor, and the remaining members must put in more or take out less. This bone of contention threatens EU unity.

The EU cannot be the same without Britain. Despite the founders’ vision of ‘ever closer union’, the debate over federalism v. states’ rights, made worse by enlargement of the bloc, has never been settled. This lies at the heart of the euro debacle.

Unless this debate is resolved, Brexit threatens the EU’s disintegration. No member wants this. Soft exit terms may be offered by some states, but not agreed by all. The government’s Supreme Court appeal was not stupid. Failure was predictable, and understanding the desirable consequences was devious. Remember Machiavelli – May won, the EU lost.

Brian Reading was an Economic Adviser to Prime Minister Edward Heath and is a Member of the OMFIF Advisory Board. For the complete archive of Global Reading articles, please click here.

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