Brexit is in danger of losing momentum

How the UK Government must regret trying to exercise the Article 50 EU exit clause via Royal Prerogative. Not only has it lost a case in the Divisional Court, most legal observers believe it will lose again at the Supreme Court in January and will therefore have to use an Act of Parliament to trigger Article 50. And in a further wrinkle, the Scottish Government has now joined in.

The Scottish Lord Advocate has published his submission this week and it has been largely ignored. But his argument is simple. Article 50 would affect the legislative competence of the Scottish Parliament, which has responsibility for implementing much of EU law in Scotland, so it also requires a legislative motion (an LM) by Holyrood. Alternatively, the UK Government can alter the powers of the Scottish Parliament, but only via Order in Council which must also be approved by the Westminster Parliament and the Scottish one.

Given the dogs breakfast of devolution, we should prepare for the possibility that the Supreme Court rules Scotland’s favour. If that happens Brexit will be well and truly stalled.

The consequence would be one of two options. First, an Article 50 Act of Parliament in Westminster would have to pass in reference to England, Wales and Northern Ireland (which it may), but also explicitly apply to Scotland. It would have to do this in defiance of the 56 SNP MPs voting against it.

Second, there would indeed have to be a legislative motion passed by the Scottish Parliament, which seems unlikely. Unless Nicola Sturgeon did reluctantly back it, perhaps having won some sort of concession from Theresa May which effectively makes the UK more of a Federation.

Either way, it is not impossible to imagine a scenario where Brexit gets hopelessly bogged down. This, after all, is exactly the plan of the various Remain agitators such as Open Britain who are determined to throw spanners in the works.

There is precedent for this, by the way. In Switzerland, the 2014 referendum to limit immigration from the EU has been effectively reversed in the last week after the EU played hard ball in negotiations. Some moderate Eurosceptic groups, such as the farmers, gave up in the face of the threat of economic hardship.

It may be tempting to say “oh well, never mind, now the public has let off steam by voting Leave we can just quietly drop Brexit”. This might be superficially attractive, especially if the elections in France and Germany next year somehow create an outcome in which freedom of movement is limited.

However, it is not realistic. The Leave campaign might have been closed down, but various Leave groups, such as Change Britain, are now reorganising themselves to keep up the pressure for Brexit to be implemented. Most significantly, Labour MPs and many Labour voters are also committed to implementing Article 50, especially as Paul Nuttall, the new UKIP leader is breathing down their necks.

In short, long-grassing or overturning the referendum would likely cause total uproar, in Parliament and the country. It would cause not only political chaos, but economic chaos as business and international investors put decisions on hold. Things could get ugly, very quickly. It is a crazy idea.

So what needs to happen? The most prized political commodity of all is momentum. Leaving aside the court case, this is what is lacking. Rather than prolonging the uncertainty over Brexit, there is a powerful unheard majority who “just want to get on with it”.

Momentum, ultimately, has to come from the Government. People often quote Theresa May saying “No running commentary”, or “Brexit means Brexit.” But they have forgotten her other soundbite: “And we are going to make a success of it.” So has she.

There is not much in the short term Ministers can do, but it would help if they could cheer up and at least sound positive and look like they are intent on embracing the opportunities of Brexit. There are three areas in particular where they could be much more optimistic in tone, content and style.

First is to use the language of mutuality and collaboration. We are not going to get anywhere in negotiations with Europe or healing the rifts in Britain caused by the referendum if we don’t talk constantly and enthusiastically about partnership, reciprocity, shared values, trust and co-operation. Successful trade and diplomacy rests not on suspicion but mutual benefit and advantage. Ministers need to become absolutely evangelical about this and take on the negativity from hard core Remainers and Brexiteers.

Second, is to promote economic growth and reform. If we are going to make a success of Brexit it means embracing, just as our Eighteenth Century forebears did, a culture of growth and progress. The anti-business rhetoric occasionally indulged by the Prime Minister, and the risk averse attitude of the Autumn Statement, has to go and be replaced with a passion for opportunity and supply side reform.

Finally, be positive about immigration. Brexit will of course mean gaining control of our borders. But once we have imposed a robust and fair system, it will not result in a massive drop in foreigners coming to live and work in Britain. How could it? We have only 5% unemployment. How would the City, manufacturing and academia thrive by shutting out the world’s best talent? Who would make the cappuccinos, work in care homes or hospitals etc, without low skilled immigration too?

Rather than prolong the frankly dishonest policy that it is going to reduce immigration to “the tens of thousands,” the Government should drop it and instead say: “We are going to put in our own robust controls but we must accept that we need immigration and in future the number will vary from year to year depending on the needs of the economy and society.” It should also find a formula to guarantee EU citizens’ rights here and, in so doing, send a signal of friendship and respect to the EU and further afield.

With Brexit, it really is true that what have to fear is fear itself.