Following today’s High Court judgment, it’s an easy commonplace that the Brexit project has been thrown into disarray. Better to take a clinical look at its effect upon the heart of May’s claim upon authority: the timing of an orderly process. Our unelected Premier has to control the pace of events, lest the ups and downs of Brexit negotiation spill over into delays by investors and recruiters or into acute market volatility. Given enough time, one or the other is bound to threaten the real economy and undermine her command.
We gather that the Supreme Court is to pronounce definitively in mid-January. Notwithstanding the apparent clarity of the lower court judgement, this gives time for the Attorney General to come up with arguments for a reversal. The Court may even welcome them as excuses to avoid the disrepute of frustrating the popular will.
If not, the parliamentary manoeuvre of an affirmative resolution (a simple yes-no vote - sounds familiar?) may cow such inclinations in the Commons. Save for one or two Remain zealots, the current mood on the Tory benches would be to support such a resolution. And with seventy percent of sitting Labour MPs coming from constituencies voting Leave, Corbyn is most likely to avoid embarrassing them by whipping abstention, failing which a free vote. Such manoeuvres may even dish the Lords for the time being, but make no mistake: they will not scruple from kicking over the traces once they see the Great Repeal Bill.
In addition, some lawyers are saying that such a vote might also be open to court challenge, and that only a conventional bill with full scope for amendments in both Houses satisfies today’s ruling. If this is right, May’s momentum is definitively challenged by an adverse ruling on appeal. The government’s resort can only be faster enabling legislation. The conventional device, a guillotine motion, risks upsetting the Commons and in any event has restricted purchase upon the Lords. In such circumstances, May will have all the excuse she needs for a snap election. It is hard to see how she would fail to increase her majority, campaigning on the platform of a doctor’s mandate to implement the referendum in an orderly fashion without giving the game away to the other side.
Given the incidence of the holidays, the earliest date for an election would be mid-February. May also needs a good reason to call it. Paradoxically, a disobliging ruling in mid-January, however unwelcome, would be just the ticket.