The Supreme Court will rule next week as to whether the Government is permitted to exercise royal prerogative and trigger Article 50 without the need for legislation. Prime Minister Theresa May has repeatedly emphasised that the Government is challenging the case because the result of the referendum provides a sufficient mandate but – playing devil’s advocate – I believe that she really wants to lose, and lose big.
Humour me, if you will…
Lady Hale, one of the 11 judges due to rule on the case, has suggested that as part of their judgement, the Court may need to consider whether a short three-line Bill would be sufficient or whether a larger, more substantive piece of legislation that comprehensively replaces EU statute will be necessary instead. If they decide on the latter, that’s good news for the PM, in my view. The bigger and more complicated the Bill the better.
Why, you ask, does the PM want a Bill? It’ll cause delays, headaches, bitterness, protests, rebellion. Yes, it will. But Theresa May wants delays that aren’t of her making. An excuse. A means by which Brexit doesn’t have to be her legacy.
Whether or not the Supreme Court rules that legislation is necessary in the short-term to trigger Article 50, is slightly irrelevant. It will still be needed as part of the future Brexit process. The key about the case is that the Prime Minister needs a big Brexit Bill now as she has a self-imposed deadline to formally notify Brussels by 31 March that the UK wishes to leave the EU.
It is here that the Courts can help but, for the strategy to truly work, the Prime Minister also needs the help of the House of Lords as it holds the necessary power to wage significant influence. The Upper Chamber – heavily weighted in favour of a ‘soft’ Brexit and a ‘remain’ philosophy, and unaccountable to any electorate – could act upon the threat of some peers and create substantial disruption to the process. This is what the Prime Minister wants. Disruption.
While the Lords cannot block legislation indefinitely, they do have tools in their arsenal that can make life difficult for the Government. They have the power to amend legislation which can hinder progress, but they also have two delaying tactics unavailable to those on the green benches. Firstly, Bills passing through the Commons are often subject to Programme Motions, whereby the Government decides how much time is available to scrutinise each piece of legislation. In the Lords, no such mechanism exists. Bills are not timetabled and, as a result, can take a lot longer to pass. There could be an appetite to let things drag out for as long as possible. Secondly, the Lords have the ability to reject and subsequently delay legislation by a year. Such a move would be viewed as a ‘nuclear option’ and would necessitate the Government having to use the Parliament Act to force its measures though; something that has not happened since the passing of the Hunting Act 2004.
The Lords cannot block Brexit but if they can be persuaded that timing is a major issue for the Government and that the Prime Minister is concerned about not meeting her March deadline, they can seek major concessions; ones which the Prime Minister would most likely have to reject in order to appease her Eurosceptic colleagues and be seen to deliver on ‘Brexit means Brexit’. This would ensure brinkmanship and the Lords would have to press further, delaying the legislation.
So why does the Prime Minister want this?
The reality now is that the picture on the continent looks very different to only six months ago. The European project is unravelling. The first indicator the Government needs to verify this is the Italian referendum on Sunday (which Renzi is expected to lose), then we have the Austrian re-election, the Dutch general. Moving forward there are French, then German elections. In short, events that could see a wave of populist, anti-establishment, ant-globalist, Eurosceptic changes that alter the face of Europe.
If the Lords play their game and delay Article 50, it will push the UK’s notification back to behind the German Federal Elections. By then, late 2017, there is a very real possibility that Brexit might look irrelevant to what’s going on over the channel. It plays to Theresa May’s legacy to see how these events pan out and, only then, go to the country.