Is there a plan?
Frederick Wilmot-Smith · Article 50 in the Supreme Court
The oral argument in Miller v. The Secretary of State for Exiting the European Union finished in the Supreme Court case yesterday. The question was whether or not the government has to consult Parliament before notifying the European Council, under Article 50 of the Lisbon Treaty, that the UK intends to leave the EU. Last month the Divisional Court in London ruled that Parliament must be consulted; the government is appealing against that decision.
Whatever the outcome of the case, the proceedings were remarkable. As with most hearings in the Supreme Court, the argument was streamed online. Unlike most, it attracted quite a few viewers. Transcripts were made available; commentators summarised the arguments. Lawyers took to Twitter to explain – or mock – the proceedings. When so little else seems to be going according to plan, this is some cause for celebration: the peaceful, public scrutiny of government actions by an open court is a rare thing.
And what scrutiny. To ward off any suggestion that the outcome might turn on the composition of the panel, all eleven justices heard the case. It is the largest panel ever convened in the Supreme Court. Some 33,840 pages of legal material were put before the Court. Thirteen barristers spoke; many more signed their names at the bottom of the skeleton arguments. More than £150,000 was raised through crowd-funding to pay for some of the claimants’ lawyers; some are said to have worked for free. While there is much to admire in this, it should serve as a vivid reminder of a structural problem the justice system faces, with or without Brexit. Not everyone with a good legal claim will be able to attract charitable donors. This means that litigation remains unaffordable to most.
There were four days of argument, much longer than most cases in the Supreme Court. One of the 11 judges, Jonathan Sumption, said (when he was a barrister) that he didn’t think oral argument ‘ever makes the difference between success and failure’. His colleague David Neuberger, however, has said that oral argument ‘is frequently determinative’. It is hard to tell what difference the argument in this case made. Both sides were subjected to close questioning, though the government was asked more questions and its lawyers seemed more often embattled. But it is always dangerous to read the runes of judicial interventions. Judgment is expected by the end of January.
There were two main arguments. The first concerned the scope of the royal prerogative, with the government claiming that the structure of the European Communities Act 1972 was such that the pre-existing prerogative to unmake treaties was unaffected. The second concerned devolution arrangements. Do the devolved legislatures in Cardiff, Edinburgh and Belfast need to be consulted before the Article 50 notification is sent? The Westminster government’s response – that the devolution arrangements are politically, not legally, binding – may be good law. It remains to be seen whether it is good politics.
The entire litigation might look pointless. If the claimants win, an Act of Parliament will almost certainly be passed empowering the executive to issue the notification. (On the third day of the Supreme Court hearing, an overwhelming majority of MPs voted in favour of Brexit.) But the consequences of the case may be felt for generations. The government could find its prerogative powers severely curtailed; Parliament could face a new settlement with the devolved administrations. The Supreme Court is unlikely to escape untarnished. The tabloid reaction to the Divisional Court’s judgment was vitriolic. It is unlikely to be more measured if that judgment is affirmed.
Responsibility for this does not lie with the courts, much less the litigants or their lawyers. The government could have passed a short act empowering the prime minister to issue the Article 50 notification. Few MPs would have voted against it. Not only would this have sidestepped the legal wrangling, it would also have ensured that any delays could only be blamed on the government. It may be tempting to think that avoiding that outcome was part of the government’s plan. It’s more likely that there was no plan.
Comments
There is an increasingly strong consensus amongst commentators that the government, and in particular St Theresa of May (as I’m sure she thinks of herself), has no strategy for exiting the EU. Journalists, academics and bloggers point out that we haven't moved on much since ‘Brexit is Brexit’ or 'I'm not going to provide a running commentary on negotiations'. These comments, and indeed the government's whole position, represent a dismaying (sic) lack of appreciation about what strategy is, its various dimensions and its application.
Historically, the word ‘strategy’ comes from the (ancient) Greek ‘strategos’ (with apologies to Greek grammarians), or ‘the art of the general’, with obvious military connotations, but is now used to denote almost any future plan. In a modern context, ‘strategy’ is about ends (where we want to end up); ways (how we’re going to get there) and means (what resources we are going to develop and allocate). Football coaches use it to describe (wrongly) how they’re going to win the next game (one might have a strategy for winning the complete season, but not just one game); David Attenborough uses it (correctly) to describe how some rodent lives in the middle of the African desert (the whole of the rodent’s life; his ‘ways and means’, are all focused on one simple end – survival), and commercial enterprises use it to describe (sometimes with a little hyperbole) their future plans (all of the above). In terms of the nation-state, strategy is compliant with policy, as defined by the political process.
Strategy means independent, rational decision-making: at the moment the focus is what we can negotiate with the rest of the EU, but we should think more widely. Strategy is contingent; not just on the actions of the EU, although that is important, but with the rest of the world – everybody’s strategy depends on everybody’s else’s. Strategy is also competitive: we need to identify what our competitive edge is and support and enhance this. Strategy can be objective, with a clear endpoint for the whole enterprise, in this case the United Kingdom, or subjective, which simply applies ‘ways and means’ to further or enhance one particular function within the whole. For example, it's no good having a transport strategy if there's nothing to transport; it's no good having an economic strategy without the productive means to support it. Subjective strategy, although a shaky concept, can be useful in that it focuses protagonists on the many aspects of their particular function, but it's no substitute for objective (where we want the whole enterprise to end up) strategy. The military are particularly guilty of this, with each service wanting bigger and better aeroplanes or ships to play with, yet with limited idea of how their particular arm contributes to the whole. Lest that sound harsh or cynical, read the Royal Air Force’s ‘Strategy' document. The Royal Navy, being the senior service, doesn't bother to say what it's for, assuming, one imagines, that it's obvious.
What then should be the government's strategy for exiting the EU? This is wrong question. What the government (and this could apply to academics, journalists and bloggers too) should focus on in the first instance is where we want to end up after the process of leaving the EU is complete. Tories’ distaste for national planning needs to be set aside and (what strategic planners call) viable scenarios developed. Although on a much smaller scale, Singapore set itself the objective of being a professional services hub for Southeast Asia; Israel has developed marketable software skills; Estonia too has developed a high-tech industry.
It's one of the oldest saws in the book, but 'if you don't know where you're going, any road will take you there'. There is a very real danger that after two (five? ten?) years of negotiation, we finally find ourselves 'free' of the EU, but with no idea of where to go then.