Despite claims to the contrary, there was only ever one purpose in trying to force the Government to secure Parliamentary approval for triggering Article 50: offering Continuity Remainers (as distinct from the majority of Remainers who accept the democratic result) an opportunity to frustrate or even prevent Brexit.
Now that the Government has lost the case in the High Court, what does that mean for the prospect of whether, when and on what terms we will leave the EU?
There’ll be a lot of heat generated, both my Continuity Remainers hoping this means Brexit won’t happen and by worried Leavers frustrated at the prospect of their great victory being stymied. But shedding some light on the outcome suggests that not a huge amount has actually changed.
First, it’s worth noting that the Government intends to appeal to the Supreme Court. They may believe they have other, better arguments, and/or that their lawyers fluffed the case. It’s always possible the Supreme Court will overturn the High Court’s ruling, in which case everything would proceed on the Prime Minister’s preferred timetable of a March date for triggering Article 50.
Second, anyone who thinks MPs will reject Article 50 in such a vote is deluding themselves. The overwhelming majority of the Parliamentary Conservative Party now wants to get on with implementing the outcome of the referendum, regardless of which side they were on in the campaign. A pleasantly surprising number of Labour MPs have also taken on board the message from their Leave-voting constituencies. Having gone through the unpleasant experience of being at loggerheads with their voters on the doorstep, they rightly don’t want to defy them now they have spoken. The referendum may have been advisory, but its advice was clear – and when seen in pseudo-First Past The Post terms, ie in terms of MPs’ constituencies, Leave won a two thirds majority. Ultimately, de facto sovereignty lies with the electorate, and politicians value their seats.
Despite some of the more overexcited commentary, nor does the court judgment put MPs in charge of the eventual Brexit deal. Some observers seem to have forgotten what Article 50 actually is. It is simply the trigger for starting the exit process, after which talks will take place and then, eventually, our post-EU relationship will be decided. There might be a debate if and when an Article 50 vote happens, in which case the usual suspects will no doubt take the opportunity to hold forth about their preferred relationship with Brussels, but ultimately MPs will be voting simply on the fact of our leaving the EU.
It is possible that someone will try to mount an attempt to introduce an amendment into the motion being voted on – say, one that declares an intention to stay in the Single Market. Here there are technical questions of procedure that are yet to be answered – will Article 50 now be triggered by a Bill, which is freely open to amendments, or by a motion, which enjoys a few extra protections? Again, though, the Commons arithmetic as well as the political pressure would seem to counsel against it, even if MPs of various parties and disparate views did get their act together to co-ordinate such an attempt.
Where all this might have a more real impact is in the timescale of triggering Article 50. Presumably while mounting their Supreme Court appeal, the Government will be getting on in the background with working out its plan for a vote if it loses again. Getting it into the Commons and, I expect, getting it through the Commons ought not to take too long, particularly if it’s a motion rather than a Bill.
The House of Lords could bog the process down for longer. For a start, the number of europhiles in the Upper Chamber is so high that it makes the Commons look representative on the issue by comparison – we can expect the Kinnocks of the world to do everything they can to frustrate the progress of Article 50. Just as importantly, they are of course unelected and thus immune to the political motivation of 17.4 million voters breathing down their necks.
It would still be a highly questionable move for an unelected chamber to try to pit itself directly against the outcome of a referendum which won the backing of more voters than any other issue or party in British political history. Doing so would threaten the legitimacy of the Lords, as well as run the risk of May calling a General Election to assert her mandate – an election which would surely spell disaster for the Labour Party in particular. Nonetheless, they may yet try it.
In short, this judgment doesn’t have half the impact some people on each side seem to believe. Article 50 will still go ahead, and we will still leave the EU. There’ll no doubt be more battles to come, but when was that not the case?