High Court puts Theresa May between a rock and hard Brexit

Three senior judges ruled that “the government does not have the power under the Crown’s prerogative” to trigger Article 50

Yesterday’s High Court ruling that the UK Government must put Article 50 to the Westminster parliament places Theresa May between a rock and a hard Brexit.

It seemed obvious to many that the EU referendum, having only advisory status, would need a vote of parliament to legitimise and confirm the UK Government’s authority to trigger Article 50. It also seems obvious that the UK Government will lose its planned appeal against the decision, but that might not be the end of it. As the UK is still an EU member Theresa May could then have the issue referred to the European Court of Justice to overrule the UK Supreme Court. No, I am not making this up.

She will win the expected vote in parliament, but that isn’t the problem. If the vote is for a Brexit Bill (as this ruling suggests) then MPs can table amendments to the legislation, asking for a second vote on the result of Brexit negotiations and for special deals, or attempt to tie the hands of the negotiators on not leaving the customs union or the single market.

Surely now those calling for an early Scottish independence referendum and claiming the SNP were waiting too long will see the sense in understanding the battlefield and allowing the Brexit vote chaos to die down before launching a campaign enabled by the Leave vote and empowered by Brexit’s predicted damage to Scotland’s economy. Especially when we don’t yet know how negotiations are going, nor indeed can we be 100 per cent certain there will be a Brexit. No good general ever commits all their troops to a confused battlefield with uncertain terrain when a far more attractive opportunity is likely to present itself in quick order.

Many Scottish independence supporters are asking if this will delay the next independence referendum. It probably won’t, unless it moves from a likely date of May 2018 to September 2018, but tactically speaking (if not socially) a few extra months of uncertainty and economic pain driven by Westminster incompetence before indyref2 would be no bad thing for the Yes movement.

Corbyn not known for being overly pro-EU, how will Labour sit if the vote goes to Parliament?

Corbyn not known for being overly pro-EU, how will Labour sit if the vote goes to Parliament?

When it comes to the vote, the SNP, the Greens and Plaid Cymru will likely be against and you would think the Liberals would too, but they have a propensity to get big decisions wrong. The SNP can say Scotland voted Remain and so we will. Plaid and the Greens can stand on principle and the Tories will call for party unity to respect the Leave vote. Tory rebels will vote against in small but significant numbers, which will be important as that means Labour MPs will be needed to vote Brexit through and, given their leadership’s inability to campaign for Remain, it will be interesting to see how many Labour MPs decide to back the Government.

If the Westminster parliament was to block Article 50, it would be akin to bringing Ukip back from the dead, there would be a UK democratic meltdown and widespread calls for Scotland to be thrown out of the UK. Ukip will have at least 45 per cent of the vote to play with and that is why Theresa May is going for a hard Brexit: she can’t be seen to be soft on immigration and risk splitting her own party in the face of potential Labour or Ukip revivals. It will be interesting to see how the Unionist Scottish MPs will vote.

David Mundell will simply do as he is told and not respect the result in Scotland. That pretty much sums up his job description. Ian Murray will lose all credibility in pro-EU Edinburgh if he doesn’t vote against Article 50, but he might not be able to stomach that option knowing it will help the independence movement. Alistair Carmichael will probably vote for Article 50 but tell everyone he didn’t.

I am assuming that the UK Government’s challenge to the court ruling next month will fail, but another option would be for Theresa May drop that, put Article 50 to parliament quickly and dare MPs to vote against it. Losing in court twice would make her look weak and appealing to the ECJ would make her look comical.

Theresa May doesn’t even have a plan A for Brexit

Theresa May doesn’t even have a plan A for Brexit

During the first indyref, a much-quoted parlance was that Alex Salmond didn’t have a plan B for currency. Following this ruling Theresa May doesn’t even have a plan A for Brexit. Not having a plan A is actually misleading because the sad and desperate truth is that the Westminster Government doesn’t even know what Brexit is, or what it will mean to the UK as a whole and the smaller nation economies in particular, and the parliamentary vote represents a huge opportunity for the SNP at Westminster. The Brexit debate will offer an opportunity for the SNP to table amendments to the bill, binding the UK Government to maintain access to the single market and, if required, to do a special deal for Scotland, with the Scottish Government allowed to represent the UK Government in discussions on that deal.

It is a perfectly reasonable request that will be given short shrift by the British nationalist/separatists now running the UK, thus removing the blinkers from those Scottish voters still holding out for a soft Brexit/special deal for Scotland before they allow themselves to revisit the Yes/No question. Without a vote in parliament such forlorn hope could be maintained for months after Article 50 was enacted, so this ruling may in fact speed up the move to call indyref2, not slow it down, if Yes support moves to the 55 per cent predicted with a hard Brexit.

Despite all this, the timetable for Article 50 being enacted, assuming the bill is not delayed in the House of Lords, is still March of next year. However, much to the consternation of Theresa May, we will gain more clarity on what Brexit really means from the parliamentary debate and, more tellingly, from the meat of the accepted and rejected amendments to the bill. It is this, and the now significant possibility that parliament and the House of Lords (where there is no Tory majority) will demand a vote on the final deal, that Theresa May is really afraid of.


About the author

Gordon MacIntyre-Kemp

Gordon MacIntyre-Kemp is the Founder and Chief Executive of Business for Scotland. Before becoming CEO of Business for Scotland Gordon ran a business strategy and social media, sales & marketing consultancy.

With a degree in business, marketing and economics, Gordon has worked as an economic development planning professional, and in marketing roles specialising in pricing modelling and promotional evaluation for global companies (including P&G).

Gordon benefits (not suffers) from dyslexia, and is a proponent of the emerging New Economics School. Gordon contributes articles to Business for Scotland, The National and Believe in Scotland.


  • The decision by the High Court of England seems to have been the only one it could arrive at, given the principles which have evolved as the ‘unwritten constitution’. So, it is hard to see what the appeal to the Supreme Court would be based on, but I am not a lawyer and would welcome informed opinion on this.

    What is more interesting and alarming is the response and nature of this in the LEAVE media. The decision is most assuredly NOT judges blocking the popular will. It is simply stating the sovereignty of Parliament. It is up to the Government to make its case and have MPs vote on this. How each decides to vote is a matter for each, although there is a reasonable argument that they vote to represent the result in their constituencies. However, each can make her or his own decision. However each chooses, I suspect any bill would pass in the Commons. The Lords is a different matter!

    Alarming is the abuse of the three judges and the attempts to intimidate the entire court and inexpect this to intensify as the date for the appeal approaches.

    If the appeal is upheld and the Royal Preogative sustained then the UK will have new absolute monarchs in the media.. I suspect this could give pause to many principled LEAVERS. It could also bring some civil disorder as is also likely following the current decision and any rejection by the Supreme Court.. if the Lords cause delays, there will be a real constitutional crisis.

    And, there is Ireland …..

  • There is no possibility appeal to the ECJ, as: (a) it’s not an appeal court, and (b) it’s a matter of internal UK constitutional law anyway, and there is no matter of EU law involved.

    However, a reference to the ECJ is possible, but very unlikely. It could happen if, at appeal in the UKSC, the Government reverses its position that an A.50 notice is irrevocable (which both sides agreed in the High Court). Then, the UKSC would have refer that question to the ECJ, for them to to decide whether it was revocable or not.

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