The High Court judgement on Article 50, ruling that Parliament must have a say on triggering Article 50, brings representative democracy, and some real politics, back into the Brexit process.
If the Supreme Court agrees with the judgement at the start of December – which it may or may not – then what impact would the need for a vote at Westminster potentially have on the Brexit timetable and the government's Brexit strategy? And could it be the start of a reversal of Brexit altogether?
One possibility is that little will change in the end. If there is a parliamentary vote to trigger Article 50 in January 2017, and Theresa May then does notify Brussels in February (or at the latest, the end of March) of the intention of the UK to leave the EU, then EU-UK Brexit talks will go ahead as planned within the Article 50 two-year time limit.
Substance of Brexit opened up
What seems more likely is that opposition MPs will demand that Theresa May sets out a much clearer set of Brexit negotiating goals. If these goals are for a very hard Brexit – trading on WTO rules for instance – then there might be a close vote in Parliament, possibly even a vote against the goals. But May is unlikely to set such a hard Brexit out as her goal.
If, rather, her goals are to obtain maximum access to the single market, and to get a comprehensive trade deal with no barriers to goods or services trade (however hard this may be to actually achieve with the EU27) then Labour, and probably the Lib Dems, may find this hard to oppose. The SNP would still have a strong basis to oppose such a negotiating mandate.
Push for a second referendum on the Brexit deal?
One key question is whether opposition MPs – perhaps the Lib Dems who have been arguing for this – would insert an amendment to the Article 50 vote demanding a second referendum on the final terms of the deal, before the end of Article 50's two year negotiating time limit.
Would enough Tory rebels, Labour and SNP support this to build a majority? The main doubt here must be on Labour's position, with Jeremy Corbyn repeatedly showing he now favours Brexit, his only real condition being a maintenance of employment protection laws.
Timing a real problem
The real difficulty with any demand for a second referendum on the outcome of the UK-EU talks (in addition to getting support at Westminster) is that the exit deal under Article 50 is likely to only cover a few areas – UK payments to cover any outstanding future budget obligations, rights of residence for EU nationals in the UK and UK nationals elsewhere in the EU. Then there is likely to be a transition deal (perhaps ‘almost’ but not ‘full’ single market access) while the UK-EU comprehensive trade deal is done over several years.
So the UK would be out of the EU by early 2019, and the substance of the final UK-EU deal – and how hard or soft it is – would only be apparent some years later. This means the real – perhaps only – moment to push for a new vote on the sort of Brexit the UK should aim for will be in the Article 50 debate and vote Parliament will now have (assuming the Supreme Court does not overturn the judgement).
Early General Election?
Might there be an early general election? This looks very likely if MPs did succeed in passing a vote that either rejected Theresa May's Brexit negotiating goals or if they passed a vote for a second referendum on the outcome of the talks (despite the timing problems with that). At the moment, an early general election (if this could be agreed in the House of Commons) would result in a Tory landslide and ensure a fairly free hand for May from then on.
If MPs support triggering Article 50 and May's negotiating goals, then she might hold back on a general election. How and whether parliament might vote again during the two years of EU-UK talks would remain a live issue – especially since, despite the government's lawyers accepting that Article 50 is irrevocable, the predominant view in Brussels being that the UK's Article 50 notification could indeed be withdrawn.
The Article 50 judgement has not derailed Brexit. But it has brought politics – and parliament – back into the process, and that is surely a positive development.