The Supreme Court and Brexit - What’s Next?

The UK’s withdrawal from the EU took another dramatic and surprise turn last Tuesday morning when the Supreme Court unanimously ruled that Boris Johnson’s prorogation of parliament was unlawful and void. Though this decision has sent shock waves across the UK, what it means for Brexit isn’t as clear.

This blog provides a brief overview of the decision, and importantly how it can affect the Brexit process going forward.

The Decision

The decision delivered by Lady Hale caused such shock as all eleven justices voted to find the Prime Minister’s actions unlawful. For a matter of such constitutional importance and one that was unprecedented, it was unclear how the Supreme Court would vote. A unanimous vote was very unexpected.

The language used by Lady Hale in her judgement was scathing about the Prime Minister’s conduct. She describes his order to prorogue as ‘unlawful, void and of no effect’, a critical and embarrassing assessment of his conduct.

The Next Steps?

There are different scenarios that could play out between now and 31st October to get the Brexit process back on track. The most prominent of these scenarios are outlined below.

Scenario A – A New Deal

The Prime Minister has been very public about his desire to negotiate a new deal with the EU to help get Brexit over the line. This primarily would involve a deal that does not contain a backstop, something that he has repeatedly branded ‘undemocratic’. However, any deal is dependent on finding a solution to replace the backstop, something the EU have said the UK are yet to provide.

Scenario B – A No-Deal Brexit

The Prime Minister and his government have been insistent that they are prepared to go through with a no-deal Brexit and that the current deadline is the last one. This scenario has become more unlikely due to the Supreme Court’s ruling.

Before parliament was initially prorogued, MPs had passed an act meaning that if the Prime Minister had not achieved a Brexit deal by 19th October, then he would need to ask the EU for an extension. Though Boris Johnson may have been thinking of ignoring this act or finding a way round it, he now would not be so confident on winning any judicial challenge in the immediate future.

Scenario C – An Extension and an Election

At present, it seems unlikely that the government will agree a deal with the EU. A no-deal Brexit seems just as unlikely though as MPs have already demonstrated their willingness to prevent it. The most likely option for the Prime Minister now would be to agree an extension with the EU that would then enable him to gain approval from MPs to call a general election.

A general election would provide a chance for the political paralysis to be lifted and for the Prime Minister to gain the mandate that he is so often criticized for lacking. For any election to be called though, Boris Johnson will need the support of two-thirds of MPs, something he won’t get without an extension first.

Scenario D – A No-Confidence Vote?

A very remote scenario but certainly the most sensational would be the calling of a no-confidence vote, not by the opposition, but by Boris Johnson himself. If the government lost this vote, the opposition would have two weeks to put together an alternative government, which if successful would see Boris Johnson resign.

However, if no government could be formed, then a general election would have to be held. Any election triggered in the immediate future would see the campaign occur over the 31st October, increasing the risk of a no-deal Brexit, the key reason behind Labour’s refusal to grant one.

Ultimately, the Supreme Court’s decision has not had a direct effect on Brexit negotiations and what will happen on 31st October. But it has brought MPs back to parliament, which allows for discussions to continue. It also means a no-deal Brexit has become even more unlikely, though nothing is for certain with the current political climate.

 Robert McConnell, Pinnacle Professional