Martin McKee: The High Court ruling on Brexit—what have we learned?

mcKee_martinThe ruling by three of the most senior judges in England and Wales that Theresa May must seek the approval of Parliament before triggering Article 50, signifying the United Kingdom’s (UK) intention to leave the European Union (EU), should not have come as any great surprise. Throughout the case, the Lord Chief Justice repeatedly expressed his bafflement with the case being made by the Attorney General. What was surprising was that the government chose to ask this particular Attorney General, the least experienced holder of this post in recent years, to lead the government’s case at all, given that he had no track record in constitutional law. In fairness, however, the ruling makes clear that the government’s case was so weak, or as the ruling described its central argument, “flawed at this basic level”, it is unlikely that even the most experienced advocate could have prevailed.

As many commentators have noted, it was somewhat ironic that the Leave campaign had, as one of its central arguments, the need for the British Parliament to take back control. Yet, no sooner was the new Prime Minister in post then it became clear that the British Parliament would be among the last to exert any control over the process. Indeed, as discussions about the European Union’s trade deal with Canada demonstrated, the parliament of Wallonia would likely be more involved in the discussions about the UK’s future relationships.

Almost immediately after the judgement was handed down, the British government announced its intention to appeal it. In fact, the speed with which it made this announcement, coupled with comments by ministers soon after, strongly suggest that politicians had not read it. For example, the Leader of the House of Commons argued that the law was not settled because the High Court in Northern Ireland had reached a different decision. Yet as the English judgement makes abundantly clear, in a very detailed Section 104, this was because the court in Belfast was dealing with a quite different matter. Moreover, that was also noted in the ruling by the Belfast court, which had been available for almost a week although it seems that it was lying unread in ministers’ in-boxes.

The government has not yet set out the grounds on which it will appeal the judgement, and it is very difficult to know what these might be. Deciding matters of constitutional law in the United Kingdom is complicated, given the absence of a written constitution. However, as the English judgement makes clear, this does not mean that there is no constitutional law. It notes that “the United Kingdom is a constitutional democracy framed by legal rules and subject to the rule of law”. This means that the Prime Minister cannot just do as she pleases. It is difficult to see any glimmer of hope for the government’s appeal, so comprehensively have the judges demolished its arguments. Although only referring to when part of the government’s case, the judges’ description of it as being “divorced from reality” will seem to many to summarise the totality of the government’s approach.

So where now? Interestingly, there is one approach that the government could take that would address its immediate problem. Both the claimants in the case and the government took the view that any decision to trigger Article 50 was irrevocable and unconditional. This suited both parties and, as it was not contested, the judges had no reason to question it. The government, needing to hold the Conservative Party together, will not wish to concede that, once it starts the process, it could stop if it becomes clear that the version of Brexit on offer is as dire as many observers expect. The claimants also wanted to portray it as irrevocable, so that it was the act of triggering it that would inevitably lead UK citizens to lose certain rights.

Yet it is far from clear that the Article 50 process cannot be halted.  The Treaty does not give an answer either way and many, including the British peer who, as a senior diplomat devised it, believe that it can. However, to get a definitive answer, it would be necessary, first, for one of the parties to the present case to raise the question in the forthcoming appeal to the Supreme Court, which neither seems to wish to do and, second, for the Supreme Court to pause while it seeks a ruling from the European Court of Justice, a process that, even if expedited, could take months. It is also possible that the Supreme Court should decide that this matter needs to be sorted out anyway, making the government’s decision to appeal a high-risk strategy. Yet, if it is left unresolved, it is likely to re-emerge later in the Brexit process.

For now, it seems inevitable that Parliament will have a say on Brexit. While most commentators believe that MPs will support triggering Article 50, even if this is against their better judgement, the situation in the Lords is more difficult. It is possible, under the Parliament Act, for the government to push measures through the Lords, but only if they give force to a manifesto commitment. And leaving the EU never appeared in the Conservative manifesto.

Parliamentary scrutiny should be welcomed by health professionals and patients. As I have noted in previous BMJ blogs, EU membership has profound implications for health and health care. It allows British residents travelling within the EU to obtain emergency health care if they need it. It allows patients who are on dialysis to enjoy a holiday in another EU member state. And it enables patients with rare conditions to obtain treatment in European Reference Networks. It provides the basis for a complex system of information exchange that warns UK regulators about concerns about health professionals coming from abroad. It speeds up access to innovative medicines. And it underpins the exchange of research staff that has done so much to make the UK a world leader in research. Beyond health care, EU legislation forms the basis of many measures to protect public health, including our membership of the European Centre for Disease Control. There have been no signs that any of these issues are anywhere on the agendas of the three ministries leading Brexit negotiations, whose attention seems focused almost exclusively on trade deals. In contrast, the Commons Health Committee, chaired by the extremely well informed Sarah Wollaston, is taking these issues seriously. Without the efforts of her and her committee there is a real danger that these issues will be ignored, especially given the many other issues occupying civil servants in the Department of Health. What lessons can we draw from this? The first is that the UK government seems no further forward in developing a coherent approach to Brexit than it was in the days following the referendum result and, as a consequence, fundamental considerations, such as those related to health, risk being ignored. The second relates to the quality of the political debate, with most politicians and media commentators rushing to comment despite obviously not having read the judgement. Indeed, most of the major news outlets failed even to have a reporter in court for the hearing (with the notable exception of Sky News’ @FaisalIslam) so it has been necessary to depend on a number of legal experts who have been posting messages on twitter, @WomaninHavana, @Law_and_policy, and @JolyonMaugham. And the third, and the most deeply worrying, is that many of the UK’s leading newspapers have launched personal attacks on the three judges concerned, which leading politicians have failed to condemn. As Plato argued in The Republic, the rule of law is one of our few protections against tyranny, a lesson that Europeans have been forced to relearn too many times in the twentieth century, with profound consequences for the health of entire populations.

Martin McKee is professor of European Public Health at the London School of Hygiene and Tropical Medicine.