Would a defeat in the Supreme Court derail Brexit?

Despite the excitement of the Remainers and the outrage of the Brexiteers to the High Court ruling on triggering Article 50, political reality will soon kick in: there is simply no way the government can allow Brexit to not mean Brexit.

There is a significant misconception about the High Court ruling – it was not about the terms of leaving the EU, or ‘hard Brexit’ vs ‘soft Brexit’.  It was purely about who can trigger Article 50.

There is a clear majority in the House of Commons for doing so, providing the bill is short and simple. Labour MPs in leave-voting areas like Doncaster and Sunderland will not be able to justify voting against triggering Article 50 to their electorate. Even if Labour make this a free vote, the government should still win comfortably. Make no mistake about it – the UK is going to leave the EU, the only question for now is when.

The big fear is delay. It takes two years from triggering Article 50 to leaving the EU and we have a General Election due in May 2020. The hard-core Remainers know that if Article 50 is triggered any time beyond May 2018 the General Election will be a de-facto second referendum.

The government, on the other hand, knows it has to not only trigger Article 50, but also to have concluded the negotiations, left the EU and allowed time for the economic benefits of leaving to materialise. Theresa May is acutely aware that should the government be seen to be delaying, it will shatter support across the country.

Should the government lose the appeal, I would fully expect them to introduce a very simple Article 50 Bill and rumours are circulating that such a ‘bomb proof’ Bill has already been drafted.

It will pass the Commons stage comfortably. The problem comes when the Bill goes to the Lords, where Peers will not have to worry about their personal prospects come an election. If the Lords reject or amend the Article 50 Bill there could be a serious constitutional crisis.

The 2015 Conservative manifesto stated “We will hold that in-out referendum before the end of 2017 and respect the outcome”, therefore a Bill that forms a part of the government’s manifesto and has a majority in the House of Commons is likely to warrant the Parliament Act being used to make sure it goes through.

There is also the Lords’ Salisbury convention which determines that they should not prevent the passage of legislation outlined in a governing party’s manifesto.

If the Parliament Act is required, a Bill going to the Lords in January 2017 may not be passed until January 2018.

If Article 50 is triggered in January 2018 we won’t be leaving the EU until just a few months before the General Election, and when you consider the government’s small majority it is potentially liable to be held to ransom by hardcore remain-supporting MPs.

There’s another advantage to non-Conservatives – the benefits of leaving are unlikely to be felt in the first few months of leaving so the government may be facing an election at the worst possible time.

In politics, particularly modern politics, anything can happen in two years and even more can happen in three.

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