Could the ruling lead to no Brexit?
In itself no, because this is a ruling about how Brexit is achieved – the process – not the desirability or otherwise of it. The decision to leave has been taken and would require another referendum to reverse. What the judges decided was how the process of leaving had to be carried out. They determined that parliament should be the body that decides on matters to do with UK law, in this case the triggering of article 50, which sets the UK on a two-year path to exit and will mean EU laws no longer apply here. The government had argued this could be done by royal prerogative, effectively side-stepping parliament. The judges disagreed.
There is no doubt, however, that the judgment gives the Remain side, which has a majority in the Commons and Lords, new opportunities to try to ensure Brexit is not too hard, that we remain tied into as many of the EU’s projects – the single market, police cooperation, and research – as possible, while leaving full membership of the club. Longer term, some Remainers believe there is a chance that the public will turn against Brexit if and when people see that the rosy future they were promised outside the EU is not quite so easy to achieve after all. If the judgment means the dangers of leaving come more into the public mind, it is possible it could mark a turning point.
What does the ruling mean the government now has to do?
Theresa May made clear last week that she will appeal against the decision in the supreme court. The case will be heard next month, and a ruling made quite swiftly. If, as most people assume, that appeal fails, ministers will have to prepare legislation so that parliament can play the role the judges said it must, in setting in motion article 50.
The nightmare for the prime minister, however, is that she will no longer be able to hide behind her stock, stalling phrases, “Brexit means Brexit” and “we won’t give a running commentary” – that have covered the fact that ministers are unclear how to proceed as they never expected the public to vote to leave.
If May does not reveal quickly what kind of Brexit she wants (single market membership or not?), MPs will use the parliamentary process which the courts have insisted on to force decisions and clarity on her. They can seek to amend the bill which will have to be presented to them, to shape Brexit as they want to see it. A majority of MPs across all parties could then force her hand. If the Commons does not amend the bill, the House of Lords certainly will seek to do so.
Ministers have to try to find a position on Brexit that will win the backing of MPs and peers. How they do it, no one knows.
Will it be a free vote?
This will be the subject of great debate in both the Tory and Labour parties. Cabinet ministers were allowed to campaign as they wished before the referendum vote so it is difficult to see how Conservative MPs can be forced to vote against their wishes at this stage, particularly if amendments are submitted on issues such as single market membership. The Tory manifesto committed the party to safeguard the UK’s position in the single market, whether we left or stayed in the EU. So to force MPs to vote to leave it would not be popular with many. The danger of imposing a whip on MPs is that many will rebel. Informal cross-party alliances will be more important than the strictures of the whips.
Does the ruling mean an early election?
It makes it more likely because the ruling has undermined the government (it lost in the courts) and highlighted May’s lack of a personal mandate and weakness in parliament. Her tiny Commons majority, shrunk further by the resignation of the Tory MP Stephen Phillips, leaves her in a perilous position in any contentious vote.
As she has insisted she does not intend to go to the country before 2020, doing so would be seen as a sign of her being buffeted around by events. An election – while likely to deliver a larger Tory majority – would be no easy fix, however. It would highlight profound splits in the Conservative party in parliament and between its MPs and supporters in the country.
Brexit would be put on hold for three months of national debate and squabbling and the economy could be harmed by more uncertainty. Labour would have to back an early election which most of its MPs would dread. It would be an election that nobody wanted. Rather than healing the divide over Brexit it could well deepen it.
Could the row do lasting constitutional damage and further erode faith in the institutions that run the country?
The irony behind the arguments over the judges’ ruling is that Leave campaigners insist that – above all else – they want to “take back control” from European institutions and vest it again in British ones. But now that the UK’s own courts have made a ruling that complicates the passage towards a hard Brexit and argues for the very thing that Leave campaigners wanted most (parliament to be given back control) they complain that the judges’ assessment is a betrayal of the people. The danger now is that it will not just be faith in politicians that is harmed, but faith in the UK legal system as well.
The country’s unwritten constitution operates a delicate set of checks and balances, determined through precedent, involving the Crown, parliament, the executive and the judiciary. The call by the Bar Council for justice secretary Liz Truss to condemn attacks on the judges was the opening salvo in what could become a toxic and hugely destabilising inter-institutional war between key components of the system. The Brexit debate has asked fundamental questions about where power lies in the UK. It was simpler when parliamentary democracy operated on well trodden paths. But on 23 June the people spoke and the system is uncertain as to how to deliver their will.
Sensing that it could stir the Brexit-backing part of the population into a mass revolt against the judges, the Daily Mail labelled them “enemies of the people” on Friday and pointed out that one, Sir Terence Etherton, was “openly gay”.
What began as a question about the EU’s power has become a potentially very dangerous one about the power of the people and how far it can trump that of parliament and the courts.
