The unexpected decision in the Supreme Court to give power to our parliament to debate the pushing of the button, created an upheaval in financial markets that had more or less given up on anything than a hard Brexit.
The court case had been brought by Gina Miller, well known on this blog as one half of the True and Fair Campaign, charity gig organiser and owner or a west end wealth management company.
Could this mean a “soft landing”?
Brexit may mean Brexit but there are several doors out of the building and – if we follow the Norwegian model, still the possibility of an orderly departure allowing us to remain in what we used to call the common market while we left the European Union.
This “soft landing” is favoured by those in business who are keen to keep their financial passports and avoid tariffs. It may be a more considered strategy.
Or could Gina scupper Brexit? (thx BBC for this analysis)
The claim: The High Court ruling that the government cannot use prerogative powers to trigger Article 50 could scupper Brexit.
Reality check verdict: The process of obtaining parliamentary approval may delay or complicate the process but it is hard to imagine that Parliament could ignore the outcome of the referendum.
The High Court has ruled that the government does not have the power to trigger Article 50 – to start formal exit negotiations with the EU – without the approval of Parliament.
The ruling was made by two of the UK’s two most senior judges, the Lord Chief Justice and the Master of the Rolls and another experienced colleague Lord Justice Sales. The government is appealing to the Supreme Court, which will hear the case in early December.
Dominic Raab, a Conservative MP who sits on the Committee on exiting the European Union, told BBC News: “A lot of people… will be shocked to see a very small group of people go to court and effectively seek the form of redress, which could end up scuppering a referendum.”
He later went on to say that he did not think the ruling would stop Brexit happening.
The government currently plans to trigger Article 50 in March 2017 and this timetable may be threatened.
If the Supreme Court rules in late December or January that the approval of Parliament is needed then it would be more difficult for that to happen in time for March.
But prominent Leave campaigner Iain Duncan Smith told BBC News: “I don’t think this affects the timetable at all.”
However, he did warn that it opened the possibility of Parliament voting against Article 50 being triggered, causing a constitutional crisis.
One of the key questions is what form Parliament’s approval needs to take, because the High Court did not specify.
There could be full legislation or a resolution, either of the House of Commons or of both houses.
Full legislation would be more complicated and time-consuming because it would require there to be debates in the House of Commons and the House of Lords, allowing there to be amendments tabled that could, for example, limit the government’s freedom in negotiations about the UK’s future relationship with the EU.
A resolution could be quicker and simpler, allowing the government, for example, to seek a very narrow resolution from MPs that grants approval for the triggering of Article 50. But using a narrow resolution could also be challenged in the courts, whereas full legislation should be watertight.
A resolution of only the House of Commons would prevent the government having to go to the Lords, where it does not have a majority and getting approval could be more difficult.
It is a resolution of the House of Commons that is by convention used to approve the deployment of UK troops for active service, which is then enforced by royal prerogative.
It is possible that either of these paths could delay the triggering of Article 50 beyond March, but could it scupper Brexit altogether?
If all the MPs voted in the way that they campaigned in the referendum then there would be a Commons majority for staying in the EU, but it is enormously unlikely that they would decide to ignore the outcome of the referendum.
Labour’s Shadow Secretary of State for Exiting the European Union Keir Starmer was very clear in telling BBC News: “We accept and respect the outcome of the referendum.”
But he added that the court ruling should force the government to set out the outline principles on which it would be negotiating.
Uncertainty – so what?
The people I have spoken to cry “the market dislikes uncertainty”. But should we be certain of the process? It may feel less comfortable to be debating the process but I am uncomfortable that anyone properly speaks for everyone. Debate is uncomfortable but necessary.
I note the “rivers of blood” notes from the Farage fiddle but the great populist outcry against delay is only part of the picture. Britain is a lot closer to accepting the reality of Brexit (and even getting comfortable with it) than we could have expected at this stage.
But there are many, myself included, who remain confused and lacking information. If for nothing else, we should thank Gina Miller for giving us room to consider. We can live with uncertainty and in this case – it seems a necessary part of the process (at this stage).
Plowman jets off
I am off on my first full week’s holiday since 2012 today and my posts will take on a different tone while I am away. If the southern reaches of Spain do not grant me ready access to the internet- you may be spared me altogether!
Have a good week – when I return I will be 55 and in full possession of my freedoms!