The government has taken one in the eye. This will please many observers, but I’m afraid, if you’re one of the many rejoicing on social media now, this result will be short-lived.
I confess to thinking that the decision is an odd one. After all, two previous legal challenges brought by the McWhirter twins (yes, of Record Breakers fame) mirroring this one – i.e. against the use of royal prerogative when applied in taking us further into the EU – both failed.
Well, it might just be possible – whisper it softly, avert your eyes – that the government’s team didn’t argue its case very well. The government has indicated that it will appeal. Higher courts reverse lower court judgements routinely.
That may happen here, short circuiting the possibility of a constitutional crisis in which our MPs are essentially offered the theoretical possibility of ignoring the result of a national referendum (which, one recalls from the government leaflet, was binding). But it is true that, unless the Supreme Court overturns this decision, the government must now consult Parliament about Article 50.
Read more: Article 50: What happens next?
In which case, Parliament will debate the issue (which Theresa May, sniffing the wind, had pretty much conceded anyway). After that debate, in which rhetoric will boom, symbolic cymbals will crash, tributes will be paid to the democratic principle of the House having its say (as both Houses did when overwhelmingly voting through the referendum legislation), Parliament will then go on to vote overwhelmingly to trigger Article 50 – whether out of respect for the electorate’s vote, or because of the whip system, or because many MPs sitting on seats with large majorities which voted to Leave abstain out of fear of their own electorates.
So, apart from generating some chunky fees for m’learned friends, and making some people who didn’t like the result of the referendum temporarily very happy, just what was the point of that?
Ask yourself this. What is it that those stubborn souls behind the flailing attempts to stymie the government’s progress towards Brexit actually think they’ll achieve? Let’s say that they succeed. Let’s say that you can defy a popular referendum if you’re wealthy and powerful enough to litigate against a result when you don’t like it.
Let’s say that they really shot the moon, and Parliament went on to vote down the plan to give notice under Article 50, they held up Brexit and managed to force an election, in which the government went to the people on a platform of upholding the result of the referendum, against Jeremy Corbyn’s Labour Party. Nothing is certain in life but that route seems likely to see Labour exploring just how low their seat count can go.
But May is a quintessentially cautious politician. I don’t think that we’ll have that election. We’ll have a debate, followed by a Parliamentary vote, followed by “as you were”. Despite this setback, we’re still on course for Article 50 to be triggered in the first quarter of 2017.