The Brexit court case is a huge distraction – what matters is the talks with EU leaders

Instead of worrying about a court case of no consequence, we ought to be trying to find out what EU leaders and MEPs think about our future trading arrangements

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The Independent Online

We all like a good court case. We swoon at the sensational clash of great minds. We all have our opinions about the irrevocability of an Article 50 notification, Gina Miller’s motives and what Parliament’s intention was when it passed the 1972 European Communities Act. 

Today, we report the latest argument that the Government hopes to deploy when the case reaches the Supreme Court on 5 December: that Article 50 has no effect on citizens’ rights until Parliament chooses to give effect to changes in EU treaties. On social media they will talk of little else between now and then. 

This is, however, displacement activity. The legal action is a waste of time and money. If the claimants win in the end, all that will happen is that Parliament will vote to trigger Article 50 and start the process of leaving the EU. 

Tim Farron, the Liberal Democrat leader, is in the news because he has pledged to vote against Article 50 unless the Government offers a second referendum on the terms of the Brexit deal. This is the Tim Farron who leads a party of eight MPs, and who voted for the Referendum Bill after the election. That was the Bill that provided for the June referendum – the single referendum that would decide the question and whose mandate the Government would honour. 

But now Farron is united with the Scottish National Party, whose MPs voted against the Referendum Bill, and with the tiny numbers of Labour and Conservative MPs who say they will vote against Article 50 (David Lammy and Kenneth Clarke, for example). The Lib Dems claim that altogether 84 MPs would vote against Article 50. Which means that 558 could vote in favour. 

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Which rather explains why none of the 84 has so far tabled a motion in the House of Commons, as any of them could always do (another reason the court case is pointless). It is equally clear that the House of Lords won’t block or delay Article 50 either. Angela Smith, leader of the Labour peers, has said so, which gives the Government the majority it needs. 

So, after all the legal fireworks, and whichever way the Supreme Court rules, Article 50 will be triggered and then we can start dealing with what actually matters, which is how we relate to the EU after we leave. 

Instead of obsessing about Henry VIII clauses and the 1610 Case of Proclamations, therefore, we ought to be trying to find out what kind of deal the other 27 EU countries are prepared to give us. 

On this, I have nothing encouraging to report. The way it will work was set out with clarity on Monday by Mats Persson, David Cameron’s special adviser on Europe, although the implication of his article was the opposite to that intended. He said he and the former Prime Minister made three mistakes in their negotiations over EU membership terms. “First: we under-bid,” he said, quoting a diplomat, “In Europe, we ask for 10 things in order to get six, you ask for four things to get four. Why?” 

The reason is simple. It is the same reason May cannot do what Keir Starmer, the shadow Brexit secretary, wants her to do, namely to set out her negotiating stance in advance, so that the House of Commons could debate it. If she said that she wanted to have tariff-free trade in cars, for example, and she failed to get it, it would look bad. 

The second mistake, according to Persson, is that “we outsourced political decisions to UK and EU civil servants”. Another way of saying that they weren’t ambitious enough. And the third mistake: “We got timed out – European partners knew we were very unlikely to walk away from the table at the EU summit in February this year as that would kill a June vote.” 

Well, that is hardly encouraging, because Article 50 imposes an even more rigid deadline. As soon as it is triggered, the two-year timer is counting down. Which is why this will be an unequal negotiation. If there is no deal when the timer runs out, then we leave the EU with no deal. Thus if May gets any deal at all it would be better than nothing, but it probably won’t be much better than a reduced Toblerone. 

All she can get is what the 27 countries, working by the EU system of qualified majority voting, are prepared to give us – subject to a veto by the European Parliament.

Instead of worrying about a court case of no consequence, we ought to be trying to find out what EU leaders and MEPs think about our future trading arrangements. Everything I have heard recently from people who know more about continental politics than me suggests that Britain will be out in the cold. 

They don’t want to punish us, but it is in their interest to make sure that leaving the EU does not look like an attractive option for their peoples. Euroscepticism is haunting Europe. The Austrian presidential election re-run is on 4 December, the Freedom Party’s Norbert Hofer versus the Greens. Geert Wilders’s PVV is running second in the polls for the Dutch election in March. And Marine Le Pen is running for president in France in May. If she wins, the EU will probably cease to exist, but even if not you can see why the British cannot be given anything that makes life outside the EU look good. 

Perhaps that is Theresa May’s cunning plan: if there isn’t any bread, give us a legal circus.

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