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What's To Come After Supreme Court Rules Parliament Must Vote On Article 50

26/01/2017 12:47 GMT | Updated 26/01/2017 12:47 GMT

In the wake of the Supreme Court decision, some Tories might be tempted by the idea of a 'judges against the people' election. They would be wrong. The Miller case matters much more to wealthy Brexiteers than it does to most people. It is not an election rallying cry.

Theresa May now has to introduce a Bill to trigger Brexit, and a short Bill along these lines has already been prepared, after the High Court verdict last November. With Corbyn's support, this can be railroaded through the Commons. However, this is not the case with the House of Lords.

There therefore remains a tiny risk of the Lords rejecting such a Bill on the not-unreasonable grounds that May does not have a mandate for the hard Brexit she is pursuing. In such a case some Tories might consider 'the peers against the people' a possible election option.

It is, however, unlikely that the Lords would give May such an opportunity. They are much more likely to go for various amendments which limit the type of Brexit she can go for, rather than blocking it completely.

This would deny May precisely the wriggle-room she has been so determined to retain. Indeed, the whole point of the public money spent on fighting the Miller case was to avoid such limitations or the running commentary on the British negotiating position that they necessitate. The object has been to avoid disrupting the fragile unity of the Conservatives by revealing what Brexit in practice means until it can be presented as a fait accompli.

The 'clean Brexit' May advocated last Tuesday had the same objective. When May spoke then of unity it was of her party, rather than the country she meant. The attraction of such a 'clean Brexit' was the avoidance of the potentially divisive (within the Tories) compromises that might come out in the negotiations with the EU. As May, unlike many of her party, is surely aware that the EU holds most of the cards in such a negotiation, going for a 'clean Brexit' and pre-emptively blaming the EU for anything which goes wrong had lots of political attractions for her.

She may now find it much harder to deliver this if the Lords pass amendments to a Brexit Bill limiting her room for manoeuvre. They would quite within their rights to do so. Neither the 2015 general election, when the Tories were explicitly committed to staying in the Single Market, nor the referendum, which was silent on the subject, gives a mandate for the 'clean Brexit' May has copied from the wonks at Policy Exchange.

However, it is doubtful that the Lords will go for anything which might create the grounds for a 'peers against the people' election. They might just go for technical amendments unlikely to resonate much with the public in any potential election. Or they might seek to write the Single Market and remaining in the Customs Union into any Brexit.

Given that such outcomes are incompatible with the restrictions on freedom of movement May regards as the central objective of Brexit, were this to happen she would then have two options. The first would be to vote down the amendments in the Commons, eventually using the Parliament Act procedure in the unlikely event that the Lords refused to back down. The second would be to ask the Commons for a vote to trigger an early election, a vote Corbyn has made clear he will support.

Tories seduced by the large poll leads they continue to enjoy, might well advocate the latter course. But the Tories have been doing badly in actual by-elections, as opposed to the polls, since the referendum. Their poll lead, indeed, seems to be a consequence of Corbyn's unpopularity, rather than because of the appeal of May's Tories.

In any case, May is likely to want to see what happens with the upcoming by-elections before she makes any such move. This is particularly the case with Copeland, which the Tories think they will win.

Labour retaining Copeland would suggest that a general election might be risky for May. If Labour are able to hold their seats then, with the Liberal Democrats recovering, May could find her majority shrinking not growing.

The bogey of an SNP/Labour coalition, which helped the Tories so much in 2015, also might not play so well in a snap election. Even if Brexit is the main issue in that election, habitually non-voting Brexit supporters may not turn out for a Tory government which is vulnerable to accusations of having mismanaged the NHS. Nor is there much appetite for a snap election in the Tory grassroots.

There would be even less appetite for it in Northern Ireland, where Assembly elections are already scheduled for 2 March. There is a possibility that, for the first time, Sinn Fein will emerge from these as the largest party, determined to make the Good Friday Agreement a sticking point for Brexit. If that happens, would May want another election in Northern Ireland when her DUP allies are already in disarray?

There is still a possibility that May could go for a snap election to give her the authority to drive a Brexit Bill through parliament. However, a contest between peers trying to define what Brexit means and May continuing to try to avoid defining it by going for a 'clean Brexit' instead seems the more likely scenario for British politics in the coming months.