Brexit blocked? Is the timetable for triggering Article 50 really in severe trouble?

The Liberal Democrats have declared that they will not let it pass without a pledge of one further referendum before withdrawal from the EU is executed. The SNP and the Scottish Government have threatened to be equally obstructive unless their special interests are satisfied. An unknown number of pro-EU Conservative MPs appear willing to work with the Opposition on the issue. On the face of it, the Prime Minister and the Government have the odds stacked against them in advance of their appeal to the Supreme Court next month that they alone, not Parliament, have the right to trigger Article 50 of the Lisbon Treaty and thus start a two-year procedure for leaving the European Union. Many have speculated that the initial timetable for this process (due to occur in the first quarter of 2017) is imperilled. Some have even suggested that the entire Brexit enterprise might be derailed.
Added to all this is the rogue factor of the Donald Trump triumph in the United States elections and what it might do to public opinion inside the UK as to what it wants from its relationship with the rest of the world. Will it lead British citizens to think they might be more certain and secure sticking with their continental neighbours? Or, as Boris Johnson, the Foreign Secretary, and Nigel Farage, still the UKIP leader on an interim basis, have declared, does this open up new opportunities and a fast track to a favourable UK-US trade deal that would swap one massive market for another that may well have to be abandoned in a ‘hard Brexit’ scenario? It appears that there is all yet to play for.
There might be. In terms of triggering Article 50, however, the most reasonable assumption is that neither the timetable nor the terms on which it will be triggered will be altered. That is because:
The Supreme Court might well stop well short of demanding a full Act of Parliament on it
Ministers and many legal observers were stunned not merely by the fact that the High Court trio of judges (including some of the most senior figures in the entire judiciary) ruled as they did but that they did so unanimously and in a manner which implied that they deemed it an open-and-shut case. This was not a judgement that hinted at any sort of prolonged intellectual agony. Its essence is that as the Government itself has conceded the triggering of Article 50 initiates an irreversible exercise then it is not sufficient for the executive to deploy the Royal Prerogative in this instance purely on the basis of a referendum that was advisory in law, hence Parliament must offer its permission to it.
This outcome was so stark that in making its appeal to the full Supreme Court, the Government has had to exercise a spectacular reversal of stance and argue that the triggering of Article 50 is not in all circumstances an irreversible decision. By conceding, in effect, that if it were to be irreversible then the referendum outcome would not be enough to render Parliament irrelevant, the lawyers who are acting for ministers are already in some trouble. The scope of the Royal Prerogative has been in the line of sight for the courts for some time and while this is a fairly sensational subject on which to reduce it further it seems to be consistent with contemporary judicial philosophy to do just that.
It is possible that the Supreme Court could overturn the High Court verdict in its entirety and uphold the preference of the Prime Minister, but that would require even more contortion in thinking than determining that what was considered to be irreversible in October now will not be so in December. Besides which there would be the risk that the Supreme Court will have been seen to be swayed by the hostile coverage received in parts of the press which ministers largely declined to disassociate themselves from. There cannot be many in Whitehall who are expecting a legal victory on this one. It is reasonable to suppose that ministers will not now be able to trigger Article 50 without Parliament.
The Supreme Court does not, though, have to determine that only an Act of Parliament is credible. There is a perfectly respectable thesis that starting to leave the EU is an action akin to deciding whether or not to enter a military conflict, such as the votes that were taken in Parliament in advance of agreeing to be part of the war in Iraq (2003) or declining to participate in air raids on Syria (2012) or reversing that position later (2015). If all that is required is an affirmative resolution of the House of Commons, then it is unlikely that this will prove more than a modest inconvenience.
Even if a full Bill is needed, Mrs May’s position in the House of Commons is quite resilient
The Supreme Court could, nonetheless, assert that full legislation is required. This is potentially a much more troublesome situation but even then ministers have a range of parliamentary options. They could draft a short and tight Bill that is hard to amend. They could put the Bill on an expedited schedule to move it through the House in weeks rather than months. They could make Parliament sit for more days than planned in order to deal with the matter. They can shelve other legislation (all of which was the product of David Cameron’s last Queen’s Speech and not as important to Mrs May).
In all of this, ministers have a secret weapon. Although after the Shadow Chancellor’s speech yesterday it is not much of a secret any longer. It is the Parliamentary Labour Party. Tim Farron, the Liberal Democrat leader, may be talking a big game on Brexit but he has fewer colleagues in the House of Commons than it takes to fill two London taxis. The SNP, admittedly, has 56 MPs, but put together they and the Lib Dems have less than ten per cent of all Members of Parliament. Mrs May is only in danger if the Labour Party is willing to throw everything against her on triggering Article 50.
Which it is not. For three reasons. First, Jeremy Corbyn and his inner circle have no more enthusiasm for unelected individuals with wigs telling ministers what they can do than do their counterparts in the Conservative Party. Second, Labour thinks it would be extremely damaging for it to be regarded as conspiring to overturn or to vastly complicate a democratic decision made in a referendum which might in a technical legal sense have been ‘advisory’ but which in every political sense was absolute. Third, Labour MPs are utterly determined not to do anything that would allow Mrs May the alibi to declare that the only solution to the dispute was for her to move a motion of no confidence in her own administration and allow an early general election in May of next year to resolve the situation.
For all of the above, ministers can be confident that while Labour will engage in some parliamentary theatre on the issue and move the occasional amendment that might be awkward, it will not press matters so hard that either the fact of or the timing of triggering Article 50 is seriously compromised. The worst case scenario is that the hour of triggering is pushed back to the very end of March 2017.
The House of Lords will not commit collective suicide on this issue either
If a full Bill is needed, then the House of Lords enters the equation (it may not do if something short of an Act of Parliament is required). The Conservative Party does not have a majority in the House of Lords and sentiment in the Upper House is even more inclined towards remaining in the European Union than it is in the House of Commons. There are vastly more Liberal Democrat peers than the tiny band of MPs whom Mr Farron can rally on the green benches. Might the campaign to upset the Government over Article 50 make a bold, collective and successful last stand surrounded by ermine?
No. It would be absolute suicide for the second chamber. It would force a general election after which the remaining powers of the House of Lords would be neutered or the place abolished. It would be a rare moment of consensus for Mrs May and Jeremy Corbyn (other, that is, then that they were both part of the ‘Reluctant Remain’ camp during the referendum but benefited from losing).
Tim Hames, Director General, BVCA