What happened?
On Thursday, the High Court ruled that the Government does not have the power to trigger Article 50 without a Parliamentary vote. Great drama ensued.
Lord Chief Justice John Thomas said, not once but thrice, that he was “baffled” by the Government’s interpretation of Britain’s uncodified constitution. He stressed that triggering Article 50 would fundamentally change the rights of the British people - such as the right to appeal a case to the European Court of Justice, ironically enough – and, therefore, the Government does not have a mandate to alter these rights unless Parliament gives it authority to do so.
The press reacted with customary cool-headed analysis and calm (Ed – really?). You only need to look at the tone and wording of some of Friday morning's front pages to see just how fraught the atmosphere is right now. To say Attorney General Jeremy Wright is under pressure is one way of putting it. Wright, whose confidence in victory drained as the case was heard, is under immense pressure from some quarters to resign. Stephen Phillips MP is already gone – although a Brexiteer, he said he disagreed with side-lining of Parliament. Iain Duncan Smith (usually so shy of the fracas) has called for a snap General Election, briefing the press that May has “no other option but to go to the country.”
What next?
If Thursday’s original judgment is upheld by the Supreme Court, then a Bill would have to pass through both Houses of Parliament which, crucially, could be amended in both Houses, enabling MPs and Peers to attach conditions relating to her negotiating strategy. Que time-consuming and protracted Parliamentary wrangling. Pandora’s Box, anyone?
The mood among MPs in Westminster, even those who have been leading the debate for the Remain side, is that Brexit will still happen regardless. However, anti-Brexit MPs now have plenty of room for manoeuvre (and they are already out on manoeuvres). They argue that whilst the public voted to leave the EU, they did not vote for this kind of leave. That gives what was the Remain majority in Parliament and now a large pro-Single Market cohort, the chance to slow down the process and, they hope, pave the way for a ‘soft-Brexit’.
Implications
1. Delay
Prime Minister Theresa May has said she will invoke Article 50 by the end of March 2017, however yesterday’s ruling means she is highly unlikely to reach her own deadline. Despite what was said to Jean-Claude Juncker.
2. The balance of power has moved some way toward MPs
What will they do with it. Right now the assumption is (rightly I think) that MPs would not dare block article 50. But where will we be in six months, economically and politically? But what of the unelected Lords? It is worth noting that out of 650 MPs, just over half – 332 – voted a different way to their constituents in June’s referendum. They will now face a choice between changing their mind and voting with their constituents’ wishes, or risk losing support in their constituencies by voting against a Bill that will trigger Article 50. It is likely many MPs will not want to take this risk, particularly Labour MPs who represent the highest proportion of Leave voters in the country. Doncaster North, for example, returned former Labour leader and staunch Remain campaigner, Ed Miliband, with a 12,000 majority. It voted Leave at a 70/30 split.
3. Early General Election more likely
Theresa May has one trump card up her sleeve: a general election. She doesn't even need to play it, just threaten to. If an Article 50 Bill is rejected by Parliament, the case for an early General Election is bullet proof. Even a slowing or frustrating of the process gives her a strong case. With the latest polls giving Theresa May’s Conservative Party a substantial 100 seat majority, this would give the Prime Minister the mandate she needs – and the votes in the House – to pass an Article 50 Bill next time round. Will she do it?
Meanwhile, the world watches the greatest political drama since Shakespeare pulled on a pair of tights.