What denouement could be more appropriate to a campaign about Taking Back Control than a United Kingdom court ruling that, as a matter of United Kingdom constitutional law, MPs elected in the United Kingdom should decide whether, and under what conditions, to trigger Article 50?
That’s what the High Court today decided.
But what, in practice, does it mean?
In early December the Supreme Court will hear the government’s appeal. And it is possible that the government could change its position. It could advance a case—the exact opposite of that which it advanced before the High Court—that Article 50 is reversible. To do so would give the government better prospects of succeeding in its legal arguments but it would carry a heavy political cost. The government would, in effect, be saying that the referendum campaign is not over. It would be acknowledging we may not, after all, choose to leave the EU. Brexit would no longer mean Brexit. That, even the most ardent Remainer would acknowledge, is an unlikely stance for the government to take.
But given the nature of the High Court decision, absent such a damaging volte-face, the government can have little confidence about the outcome of the Supreme Court appeal.
The government will know this and so, alongside the Supreme Court appeal, it will be drafting a Bill in readiness for it to go before parliament. That Bill, it is tolerably clear as a matter of constitutional law, would have to pass both Houses: the Commons and the Lords.
There would in the Commons be—and I think, rightly—little or no enthusiasm for rejecting such a Bill. The fact that, legally, the referendum was not binding does not have as a consequence that, politically, it can or should be ignored.
But it is very possible—indeed it is likely—that MPs will seek to impose conditions on the government’s decision to trigger Article 50. Those conditions are likely to be a mix of procedural and substantive.
The procedural conditions…