I wrote here in October about the difficulties the Government is likely to face as it navigates through Parliament its ‘Great Repeal Bill’; a Bill that will end the legal supremacy of EU law through the repeal of the 1972 European Communities Act.
Since then, we have heard almost nothing further about this Bill. Instead, the focus has shifted to the role that Parliament may play before the triggering of Article 50. This follows a defeat by the Government in the High Court which, if it loses its appeal in the Supreme Court, would necessitate a Parliamentary vote to effectively sanction the Prime Minister to begin the Brexit process.
This has laid yet another obstacle in the Prime Minister’s path, who until only a few weeks ago, took it for granted that she alone could initiate Brexit through the exercise of her prerogative powers. Losing the appeal could enable Parliament to derail the Government’s timetable for Brexit.
How likely is it that Parliament would vote to stop the Government initiating Article 50?
Admittedly, this is quite unlikely. Few MPs would run the gauntlet of electoral suicide by being seen to vote against ‘the will of the people’, not least the many Labour MPs whose northern constituencies voted in high numbers to leave the EU.
There is however a greater risk that the Government will see its plans significantly amended by Parliament, assuming the Government seeks to do this by bringing forward a Bill. Former Labour leadership contender Owen Smith has already said he will seek to amend a Brexit Bill to lay the way for a second referendum — something the Liberal Democrats are likely to support. Others may seek to amend it to guarantee continued membership of the EU Single Market.
No doubt in anticipation of this, the Government is said to have drafted a short 3 line bill, should they need it, that would be so tightly drafted that it would effectively be impossible to amend it. This may get the Government out of a hole, but it does little to dispel accusations that they are trying to take Brexit forwards unilaterally and subverting Parliament.
The most likely risk may well come from the Lords, whose members are overwhelmingly pro-EU and, fortunately for them, immune from the electoral process. If the Lords’ anti-Brexit contingent can rally up enough rebels, benefitting too from the scores of Peers whom routinely don’t turn up to vote, it is not impossible that the Government could be defeated.
The Government will be holding its breath for the outcome of its impending court appeal. Whichever way it goes though, trouble certainly lays ahead. Whether it is pre or post Article 50, the Government will need to tread carefully each step of the way.