Is Donald Trump going to be impeached?

Dr Rebecca Richards

Lecturer in International Relations – SPIRE

With bombshell news coming out of Washington DC in what seems like 5 minute increments this past week, it is understandable that the ‘i’ word – impeachment – has been brought up. Calls for impeachment have come from some Democratic party supporters since even before Trump was inaugurated as the 45th president of the United States in January. However, impeachment is rare, and it is not easy. So what is it, how does it work, and how likely is it to happen?

Impeachment is a check built into the US system through the Constitution. It is there as a mechanism to remove a president who has committed ‘treason, bribery, or other high crimes and misdemeanors’. Now, what those mean is vague and is therefore highly subjective: there is nothing in the US Constitution that specifies what ‘high crime or misdemeanor’ would be an impeachable offense. What is clearly implied, though, is that impeachment must occur because of a crime being committed, not because of political bickering.

In the US system, the president is immune from most legal action when in office, especially criminal action. However, even though the president has a wide berth when it comes to being able to do some things that for someone else would be illegal (declassifying information, for example), the president is not above the law. Thus, impeachment is a mechanism through which the US president can be punished for any crimes that are committed.

So, who determines if he (or, someday, she) should be impeached?

Impeachment is a lengthy and complicated process, and it is one that is not taken lightly in the US. And this is rightly so – impeachment is the only way to remove a president from office, so if it becomes a political tool used by either party to remove ‘not their guy’ from the presidency the damage to the democratic system in the US would be immense. Thus, the two impeachment proceedings in recent memory (the third, the impeachment of Andrew Johnson, took place in 1868) – Bill Clinton and Richard Nixon – both started with some form of investigation. For Nixon, the investigation came through a Special Prosecutor (infamously fired during the Saturday Night Massacre) but also through the press. After Nixon resigned, the Office of the Independent Council (OIC) was created to deal with, in part, future investigations of presidents. It was the OIC that investigated Clinton. The OIC has been defunct since 1999, but this does not mean that the president cannot be investigated.

Late this week news broke that the US Department of Justice has authorised a Special Counsel – former FBI director Robert Mueller – to investigate any possible links between the Trump campaign and Russian actors or agents during the 2016 election. The authorisation also allows for Mueller to ‘chase the trail’ of any activity stemming from those links if they are potentially criminal in nature. At the same time, both the House of Representative and the Senate are holding numerous hearings on Russian involvement in the election. The most active of these are the House Intelligence Committee and the Senate Intelligence Committee. Further, the FBI is also carrying out its own criminal investigation. Until he was fired last week, FBI Director James Comey was heading this. There is no current investigation specifically focused on Trump’s recent actions, including passing sensitive information on to the Russian Ambassador and Foreign Minister, or his alleged interference in the FBI investigation. There is also no investigation, that we know of, specifically focused on Trump himself. Investigations are likely to have an initial focus on Trump’s first National Security Advisor, Michael Flynn.

It is safe to say that there are mechanisms in place for investigating the president. Of the ones currently investigating the Trump campaign, the Special Counsel, Robert Mueller, is the least likely to be influenced by politics. For the others, including the FBI as it is under the auspices of the DOJ and therefore reports to an executive office, party loyalties and objectives will always be a concern.

So the president can be investigated. What next, then?

If there is strong evidence that a crime has been committed or is likely to have been committed, impeachment is a likely next step. I say likely as it is not guaranteed. Impeachment is a power held by the House of Representatives, an elected body imbued with party politics. The current House of Representatives is led by the Republicans, Trump’s party. However, their majority is small, and there are a significant number of House Republicans who represent districts that voted for Hillary Clinton in the 2016 election. In the interests of their own job security, they and others fearful for their seats in the 2018 mid-term election may support impeachment.

Impeachment proceedings formally start with the introduction of articles of impeachment in the House of Representatives. This originates in the Judiciary Committee before moving to the full House. It only takes a simple majority of the full House to pass this, meaning 218 out of 435 representatives must vote in favour. If the bill passes, the president is impeached. However, this is only the first stage of the process. Essentially, impeachment is analogous to indictment, meaning all it really is is saying there is enough evidence to put the president through a trial. 

This trial takes place in the US Senate, a body of 100 senators. The trial is presided over by the Chief Justice of the US Supreme Court. It’s not a typical criminal trial. Rather, it’s a trial to determine if the president should be removed from office. The House of Representatives presents the prosecution’s case, based on the articles of impeachment. The president acts in his own defense, with the assistance of legal counsel. The Senate is the jury. The US Constitution requires a 2/3 majority for a ‘guilty’ verdict to be returned.

If the president is acquitted, he has still been impeached but will remain in office. If he is found guilty, he will be removed from office. Aside from resignation or death, this is the only way for a president to be removed. Once removed from office, criminal proceedings against the now former president may begin if appropriate, or if a pardon is not granted. These would be held in the same manner and using the same proceedings as anyone else accused of a crime.

Is it going to happen now?

In short, we don’t know. And if history is anything to go by, we’re a long way from knowing for certain. We also do not have any historical precedent of a president being forcibly removed from office, so we don’t know exactly how that would work.

The US has witnessed two completed impeachment proceedings, one in 1868 and the other in 1998. In both, the presidents were acquitted by the Senate. Impeachment proceedings against Nixon were started,  but Nixon was never impeached as he resigned before the full House of Representatives could vote. It is likely, though, that if his case had gone to the Senate he would have been removed from office. He would have been the first to be removed in this way.

Impeachment is a legal procedure, but it is also a political calculation. We cannot ignore how party politics plays into this. There may be increasing talk of the impeachment of Trump, but it would take not only overwhelming evidence of a crime, but also overwhelming evidence of potential electoral damage in the 2018 Congressional midterm elections for a Republican House to impeach a Republican president. Congressional Republicans have already indicated as such, and Congressional Democrats have a vested interest in obtaining overwhelming evidence to avoid accusations of partisan politics from a deeply divided electorate. Things are moving fast, and there is no way to know exactly what will come. But even if impeachment is in the future, it is not likely to happen quickly.

 

Dr Rebecca Richards is a Lecturer in International Relations in SPIRE. Her interest in studying politics began in the US during the Clinton impeachment, which led her to studying US politics and US foreign policy until her PhD. She has previously taught US politics, and maintains a research interest in how US foreign policy and perceptions of US power impact upon the developing world.

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Can we trust the opinion polls in election 2017?

Dr Matthew Wyman
Senior Teaching Fellow in Politics, SPIRE

Political opinion polls have taken a bit of a battering in the past few years. There was wide agreement on the eve of the last UK general election that the outcome would be a hung parliament. Few pollsters saw Donald Trump winning the 2015 presidential election in the US. And almost everyone agreed that Brexit would not happen. So are opinion polls worth the paper they’re written on any more? The Conversation

Polling made its entrance onto the political stage in the United States presidential election of 1936, at a time when various prominent American newspapers were confidently predicting victories for Republican Alf Landon on the basis of polls of their (rich, unrepresentative) leaderships. George Gallop realised that he could achieve much more accurate predictions reasonably cheaply by taking a random sample of the population, and by doing this successfully forecast a landslide victory for Franklin D Roosevelt.

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The key words in this statement are “random sample”, and this is where modern day polling is running into trouble. When Gallop began building his market research empire, gauging public opinion was a complicated business. It involved sending trained interviewers out to randomly selected addresses to interview a specific named person. If they couldn’t get hold of them, they were asked to go back again and again until they found them. What pollsters call “response rates” – the proportion of people agreeing to be interviewed – were very high. So was the cost. You had to train your interviewers, send them out, and tabulate the results, which in the BC years (before computers) was done by hand using punched paper index cards.

However, overwhelmingly, results were good, politicians came to rely heavily on poll predictions, and newspapers got into the habit of using them in order to report politics as entertainment about who was winning.

Polling today

These days technology and changes in the ways political opinion polling is done allow market researchers to get answers much more quickly and cheaply. Polling can also be done by post, online, or by phone. Rather than genuinely random samples, it’s usually cheaper for market researchers to use what are known in the trade as “quota samples”. Interviewers talk to certain numbers of people in different demographic categories (by gender, income, social class, ethnic group and so on).

However, they face several increasingly difficult challenges. Some kinds of people are just harder to reach than others, especially people who work full time – a group who are still a bit more likely to vote for conservative parties. We are now asked our opinions about so much so pointlessly that response rates for polls are desperately low at around 25-30%. We all suffer from poll fatigue.

Respondents are also self-selecting. People who are interested in politics are more likely to be willing to share their views with a stranger, and also are more likely to be left wing. All of these factors mean that the samples used by the pollsters to make their predictions simply aren’t as good as they used to be, and they all tend to err in the same direction.

This doesn’t mean that polls are now redundant. Well-constructed surveys which are properly carried out still get representative results. For example, the sample used by the British Social Attitudes survey, carried out via face-to-face interviews and requiring revisits where the randomly selected individual was unavailable for interview, correctly forecasted around a six point lead for the Conservatives in the 2015 general election.

However, these high quality polls are expensive, and take a long time. Given that the mass media mostly wants poll numbers rapidly, and for entertainment, it hardly seems likely that they will want to make the extra investment.

Parties’ own internal polls do take the time and trouble and do get accurate results, ones which will no doubt have been part of the prime minister’s decision to go to the country. Current published polls show the Conservative Party has a 20 point lead over Labour, if not more. Is the true situation in the country likely to be anything other than a large Tory lead? Absolutely not: even cheap polls are not that inaccurate. As it stands, you’d be most unwise to take the 12:1 odds currently offered by some bookmakers on Labour being the largest party on June 8.

 

Dr Matthew Wyman is a Senior Teaching Fellow in Politics in the School of Politics, Philosophy, International Relations and Environment, Keele University. Matthew teaches Russian Politics, and political practice. Matthew was awarded the Political Studies Association’s Innovation in Teaching in 2016 for his module, ‘The Practice of Politics’. More about Matthew’s teaching can be found here.

This article was originally published on The Conversation. Read the original article.

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The Brexit divorce bill explained

Dr Christopher Huggins – SPIRE

The amount of money the UK pays into the European Union became a crucial point of debate during the EU referendum campaign, ahead of the country’s vote to leave. The defining image of the time was Vote Leave’s campaign bus, emblazoned with the claim that the UK sends “the EU £350 million a week”. This was a figure which, in the words of the chair of the UK Statistics Authority, was “misleading and undermines trust in official statistics”.

The debate has since moved on to what Brexit will look like – but money continues to be a key theme. There have been claims and counter claims that the UK will or will not have to make payments to the EU once it leaves. Discussion over post-Brexit payments to the EU generally falls into two categories: whether the UK needs to pay an “exit bill” to cover outstanding commitments once it leaves; and which ongoing payments it needs to make to the EU in exchange for certain benefits.

An exit bill

Michel Barnier, the European Commission’s chief Brexit negotiator, allegedly told colleagues that the UK would have to continue paying into the EU budget, causing no small amount of consternation in the UK. Such a payment would, among other things, be used to cover pension liabilities for EU staff and committed spending on EU loans, projects and regional funding programmes. This liability has been estimated to be around £50 billion (US$62 billion).

These claims are made because of the way the EU budget works. It is set in a seven-year cycle, known as the multiannual financial framework (MFF). This outlines the EU’s spending commitments and priorities. The current MFF runs between 2014 and 2020. The argument goes that should the UK leave before 2020, it will still be liable to cover what it signed up for in the current MFF, up to 2020.

Unsurprisingly key Brexiteers have been vociferously dismissing the demand. There have even been suggestions that the UK should seek payment from the EU instead of paying in, based on the UK’s share in the European Investment Bank.

However, the legal position of what, if anything, the UK will have to pay in the form of an exit bill remains unclear. The regulation outlining the EU’s current MFF sets out the need to revise it if another state joins the EU, but says nothing about what would happen if a member state leaves. Anyone’s claims of certainty that the UK will or will not have to pay an exit bill should therefore be treated with extreme caution.

Continued payments

Nevertheless, the British government’s desire in the Brexit negotiations is to “secure the best possible deal”. In order to achieve this, the government has left the door open for continued cooperation with the EU.

This was acknowledged by the government in its Brexit white paper, which states: “There may be European programmes in which we might want to participate. If so, it is reasonable that we should make an appropriate contribution”.

Vote Leave put money at the heart of the campaign.
Shutterstock

The specifics of this will be a matter for negotiation once the talks begin. However, references in Theresa May’s speech at Lancaster House outlining the government’s negotiation objectives, and in the white paper, suggest continued cooperation to ensure collaboration in science and innovation, and in fighting crime or terrorism, are priorities for the government.

Cheque, please?

Article 50, which sets out the process for a member state to leave the EU, makes no mention of financial liabilities. As noted above, the legal position on whether or not the UK will have to continue to meet its financial liabilities up to 2020 is uncertain. Like most things in Brexit, therefore, it is a matter for negotiation.

The British government has a delicate balancing act here. On the one hand, payments to the EU after the UK has left are likely to be perceived as a betrayal against those who voted Leave in order for the UK to “take back control” of its finances. On the other hand, an outright refusal by the UK to make any payments, whether as a one-off or as a continuing payment in return for specific benefits, will severely hamper the UK’s negotiating position and the chances for the government to “secure the best possible deal”.

This issue will not only be on the minds of the UK negotiators. Brexit will see the withdrawal of a significant net-payer into the EU budget. The other EU member states will be entering the negotiation looking to ensure their financial interests are maintained.

It’s no surprise, then, that May has been extremely cautious in choosing her words about payments to the EU after Brexit has happened. She stated that “the days of Britain making vast contributions to the European Union every year will end”. Nevertheless, her statement to parliament that “what’s important is that, when we leave the European Union, people want to ensure that it’s the British government that decides how taxpayers’ money is spent” leaves plenty of room for the UK to continue to pay the EU after it leaves.

 

Dr Christopher Huggins is a Teaching Fellow in European Politics in SPIRE. His research focuses on the Europeanization of sub-national government and how local authorities actively engage with the European Union, often bypassing their national governments. More about Chris’s research can be found here.

This article was originally published on The Conversation. Read the original article.

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The politics of Brexit will have far-reaching consequences for Britain – UK in a changing Europe

Dr Helen Parr
Senior Lecturer in International Relations, SPIRE

Source: The politics of Brexit will have far-reaching consequences for Britain – UK in a changing Europe

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Yesterday’s by-elections weren’t all about Brexit

Dr Christopher Huggins
Teaching Fellow in European Politics

Conventional wisdom is that opposition parties perform well and gain ground in by-elections while governing parties don’t. In Stoke Central (which featured two SPIRE alumni as candidates – Jack Brereton (Conservative) and Gareth Snell (Labour)), Labour managed to retain their seat, albeit with a reduced majority. The Conservative’s win in Copeland, however, was nothing short of a disaster for Labour in a constituency they have consistently held since the 1980s. It is the first by-election gain by a governing party since 1982.

There has been a temptation since the EU referendum to view electoral contests primarily through the lens of Brexit. Brexit, it is argued, is the new divide in British politics. Voters are aligned to remain or leave. There are remain constituencies and there are leave constituencies. This narrative was present in coverage in the run up to yesterday’s by-elections – to some extent in Copeland and to a large extent in Stoke. Media coverage was keen to highlight that both constituencies voted leave in the referendum. With around 70% voting for ‘leave’ in June’s EU referendum, Stoke attained the status of “the Brexit capital of Britain”, making it a prime target for the new UKIP leader, keen to reach out to disaffected Labour voters. Candidates were initially assessed not on their broader appeal to the local electorate, but whether they supported remain or leave in the referendum, whether they would respect the result of the referendum and so on. It’s a narrative that worked well with the Richmond by-election in December 2016, but cannot be applied so readily to yesterday’s by-elections.

Brexit no doubt played a role yesterday, but the result in Stoke in particular challenges the simplistic narrative that constituencies and voters can be neatly divided into “remain” and “leave”. Instead, questions can be raised about a range of other possible factors which have played a role.

For example, what impact has the popularity of party leaders had? Labour’s problems arguably run much deeper than its current leadership, but Jeremy Corbyn is by no means a popular leader. In the latest YouGov poll only 15% think he is best for Prime Minister, compared to 49% for Theresa May. Following her election last night, the Conservative victor Trudy Harrison was explicitly clear in attributing her success in what had been a long-term Labour seat to the fact that voters in Copeland simply felt that “Jeremy Corbyn doesn’t represent them”. This was despite the future of the local NHS hospital being one of the key issues locally, something Labour traditionally should have been able to capitalize on.

What about the quality of the candidates themselves? In Stoke, both Snell and Nuttall were the focus of significant media attention. Snell received significant criticism following the revelation of his less than squeaky clean social media history. And Nuttall too for his claims about Hillsborough and his potential breach of electoral law by failing to list his actual address on the nomination forms. Snell was able to draw on his local connections to Stoke, while Nuttall was never going to be able to shift his status as an opportunistic parachute candidate.

What about the local campaigns? The Conservatives put a lot of effort into the on-the-ground campaign to win Copeland, and it clearly paid off. Labour similarly had a heavy presence on the ground in Stoke, while UKIP’s efforts there were hardly a model for an efficient party campaign machinery in action. Again, Nuttall’s failure to list his correct address on his nomination form, along with his absence from some local hustings events are illustrations of this.

And what about the issues that resonate with local people (all politics is local after all)? Much has been made of the importance of the nuclear industry as a major employer in Copeland. To what extent did the current Labour leadership’s perceived ambivalence and lack of commitment to nuclear play on voters’ minds there? In Stoke, despite the high leave vote in June’s referendum, Brexit barely got a mention in the local campaign. Rather the performance of the local hospital, the future of other local public services and a general dissatisfaction with Westminster politics were key issues on the doorstep. This was even recognized by UKIP. Nuttall was keen to point out in hustings (those that he attended) that this by-election wasn’t about Brexit, for example.

Yes, certain areas voted predominately to leave, and others to remain. But yesterday’s by-elections show us the picture is far more complex than this simple characterization would have us believe. Leave vs. remain becomes rather more murky when you throw in the dynamics of party competition, for example. For those of us that study politics, this reaffirms the complexity of electoral contests, and the need to consider a range of local and national factors that have the potential to influence voter behaviour and the outcome of elections. Brexit and the proportion of leave/remain voters in any given area may be one of a number of explanatory factors explaining electoral outcomes, but it is important not to lose sight of local context.

Dr Christopher Huggins is a Teaching Fellow in European Politics in the School of Politics, Philosophy, International Relations and Environment at Keele University. His research focuses on the politics of the European Union and British politics. He has an  emphasis on the Europeanization of sub-national government and how local authorities actively engage with the European Union. More about Chris’ research and teaching can be found here.

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Article 50 vote shows Brexit is about politics, not Britain’s future

Helen Parr
Senior Lecturer in International Relations

The vote in the House of Commons on whether the British government can trigger Article 50 has been revealing. It showed just how much the current Brexit debate is cast not by the economic and international interests of the UK, but by British (and in fact, mainly English) party politics.

Public opinion has always been ambivalent about EU membership. The British public have generally been willing to follow the government of the day on the UK’s relationship with the Union. And we can see that it very much still is.

Britain’s departure from the European Union is all about the Conservative party. The decision to hold a referendum in the first place was party political – former Prime Minister David Cameron’s attempt, monumentally failed, to silence Conservative eurosceptics and to quash UKIP. The Conservative government’s reaction to the result was a rapid exercise in party score settling, ending with the appointment of Theresa May – herself a quiet remainer – to the most difficult mantle any prime minister has inherited lately.

May’s policy has been, in effect, a continuation of Cameron’s – to prioritise the wishes of the eurosceptic right. Her first goal, therefore, is to reduce immigration. While she must hope for a Brexit deal that will give some access to the single market alongside restrictions on freedom of movement, her posture suggests Britain’s economy will play second fiddle to her ability to tell voters she has a deal on immigration and Britain has freed itself from the jurisdiction of the European Court of Justice.

The politics of Brexit have centred first on the statement that the referendum result was the will of the people, and that the government’s duty is to carry it out, and second on the continued “in-out” tenor of the debate.

Eurosceptics have regarded any legal or parliamentary scrutiny as an attempt to “stop Brexit”. So although British politics should have been transformed by the outcome of the referendum, and debate should have shifted to how to exit and the difficulties this might entail, it has in fact continued along the referendum campaign’s “for or against” lines.

Where was Labour?

The supreme court judged that the government could not trigger Article 50 without parliamentary support. The government tabled a short bill, and parliamentarians tabled amendments, including whether to hold a second referendum, and to guarantee unilaterally the rights of EU citizens living in Britain. Each of the amendments was defeated, and the bill overall passed with a large majority. Why was this?

Conservative party discipline has been impressive. Only the long-time europhile Ken Clarke defied his party whips on the final division. For the Conservative remainers the alternatives seem worse. They are unsure whether it is better to oppose outright or to find ways better to scrutinise. Stickling too much now might reduce their influence in the party later, when the terms of any deal become clearer. Most have to concede that May has played her political cards well. The Conservatives also like the fact that they are more united than Labour.

Jeremy Corbyn’s Labour party, meanwhile, remains unclear about its position towards Brexit. Corbyn has said Britain should retain “tariff free” access to the EU – a position which does not address Britain’s relationship to the single market – and has at various times declared his support for free movement and his willingness to restrict it in some circumstances. Corbyn also wants to protect rights for workers.

It is difficult to discern whether Labour’s Brexit position is born of pragmatism, or whether it simply reflects Corbyn’s own long rooted ambivalence to Britain’s participation in European integration. Many MPs represent constituencies which voted to leave, and a constitutional crisis now would probably not serve Labour’s longer term interests. Supporting the bill now might allow greater scrutiny and say later on.

corbyn-helen-brexit

Corbyn imposed a three-line whip to support the Brexit bill, but 52 of Labour’s 229 MPs defied that whip in the notification of withdrawal division. Of those rebels, four, including Labour’s business spokesman Clive Lewis, resigned from the shadow cabinet.

The Article 50 bill will now pass to the House of Lords, where peers are unlikely to place strong obstacles to its passage. In all probability, May will trigger Article 50, thus beginning negotiations with the EU on Britain’s departure, by the end of March.

Politically, therefore, May has outmanoeuvred the opposition thus far. However, the politics of Brexit may now get tougher as the stage widens beyond the parties, and as, presumably, debate has to range beyond the familiar “in-out” lines. Negotiations with the EU are likely to be anything but plain sailing, and as negotiations progress, the ambiguities in Britain’s negotiating aspirations will become exposed.

First Minister Nicola Sturgeon feels that May has ignored Scottish concerns, and may well move towards a second referendum on Scottish independence. The issue of the Irish border was not dealt with convincingly in the government’s white paper.

The government has conceded that MPs can vote on the terms of the final deal, but also made clear that the vote will be on a “take it or leave it” basis. It does not intend that the vote could peel back whatever it is that has been agreed.

The future, therefore, is still uncertain: May’s deal with the EU could be anything from membership-lite (unlikely) to a settlement that not only changes Britain’s position in world politics, but also gradually transforms traditional party politics, and the continued existence, in its current form, of the UK.

The Conversation

Dr Helen Parr is Senior Lecturer in International Relations and Director of Postgraduate Teaching in the School of Politics, Philosophy, International Relations and Environment at Keele University. Her research is on post-1945 British history, particularly Britain’s relations with Europe, Britain in the Cold War, British-French relations, and British nuclear weapons policy.

Originally published on The Conversation. Read the original article.

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Brexit, Article 50 and the Supreme Court ruling: how the government made its own life more difficult

Dr Christopher Huggins
Teaching Fellow in European Politics

 

Yesterday the Supreme Court delivered its judgement on the government’s appeal in the Article 50 case in what was billed as one of the most significant constitutional law cases in generations. The verdict, of course, has wide ranging constitutional law implications. But there are also significant political implications for how the government will be able to proceed with Brexit.

It’s important to note that for all the hype around Brexit and the EU referendum, the primary concern of the case was a matter of constitutional law. Indeed, Brexit and the referendum barely got a mention in the hearing in December. The verdict reaffirms the long-established constitutional principle that it is parliament that makes the law and that government cannot use its executive powers (the Prerogative) to change the law without parliament’s authorization. The Supreme Court is the highest court in the land, and as such the government has no other option but to accept the verdict. In this way the Supreme Court has successfully performed its role as an independent check on executive authority, something which should be valued by all those who support the basic principles of democracy. The verdict should also be celebrated by those who campaigned during the EU referendum on the message that British laws should be made by a sovereign British parliament. In the words of legal commentator David Allen Green, it is evidence that “the constitution is working”.

In its response to the verdict, the government said it was “disappointed”, but it would nevertheless respect the outcome and get on with the job of delivering Brexit, by seeking authorization from parliament in the form of a short bill. Unlike with the High Court verdict, the government was also quick to pre-empt a hostile press reaction and re-affirm its respect for an independent judiciary. The government’s disappointment, however, is self-inflicted. Indeed, one of the most striking things about the case was that it could have been avoided entirely. There were two missed opportunities here.

Firstly, the legal challenge was launched due to ambiguity in 2015 European Union Referendum Act. While the Act permitted the referendum to take place, it says absolutely nothing about how the government or parliament should respond to the result. Had the Act bound parliament and the government to the result and, in the event of a leave vote, authorized the government to invoke Article 50 of the Lisbon Treaty, then the courts’ involvement in Brexit (or at least the triggering of Article 50) could have been avoided. Indeed it says something about the complacency of the Cameron government and parliament, and the fact neither expected a leave vote, that such provisions were omitted.

Secondly, had Theresa May simply accepted the decision of the High Court in November 2016 and delivered the (still to be revealed) short bill authorizing the government to invoke Article 50, then the government would probably have the necessary authorization by now, and would be on course to meet its March 2017 deadline. By appealing the High Court’s decision rather than “getting on with the job of Brexit”, the government has frustrated and delayed its own progress, and made it more difficult to meet its self-imposed March 2017 deadline for Article 50 notification.

No article 50 notification can take place until an Act of Parliament authorizing it is passed. Any attempt by the government to notify before this would be unlawful. The government insists it can still meet its March 2017 timetable, but its job would have been much easier had it introduced such a bill in November. Back then there was more political momentum behind Brexit, at least among parliamentarians eager to respect the ‘will of the people’. The form of the bill (long or short, simple or with bells and whistles attached) is up to parliament, but the government could have used this momentum to rush the bill through and ensure it broadly reflected its own wishes.

The likelihood of parliament rejecting an Article 50 trigger bill outright is incredibly low. But parliamentarians of all political colours will now seek to seek to add amendments or bind the government to certain conditions, such as the publication of a Brexit plan in the form of a White Paper (a provision the government has just accepted). This is especially the case since Theresa May’s speech last week outlining a 12-point (but still vague) plan for Brexit, which has not been universally accepted by MPs. This all risks delaying the bill’s passage, adding to the government’s already heavy workload and binding the government to any provisions that are enacted. In effect the government risks losing control of the Brexit agenda. And for those seeking clarity on what Brexit means, it has the potential to create more confusion and uncertainty.

The other implication of the Supreme Court ruling goes beyond Brexit and the EU referendum. That is in re-affirming that parliament is sovereign and that the government cannot independently make, unmake or amend the law, the ruling is used as a point of reference for other cases where executive power is challenged. This, potentially, limits the scope of government authority. Therefore in appealing, and losing, the government has potentially shot itself in the foot and limited its own capacity of act independently of parliament.

So, in appealing the High Court verdict the government has deliberately delayed its own Brexit plans, made it more difficult to get Article 50 notification on its own terms and, potentially, set a precedent which limits government authority and capacity for years to come. As stated above, all of this could have been avoided. In appealing, the government made a gamble which did not pay off.
Dr Christopher Huggins is a Teaching Fellow in European Politics in the School of Politics, Philosophy, International Relations and Environment at Keele University. His research focuses on the politics of the European Union and British politics. He has an  emphasis on the Europeanization of sub-national government and how local authorities actively engage with the European Union. More about Chris’ research and teaching can be found here.

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