The doctor's mandate

4 November 2016

After circulation to those with "first look",
this was published earlier today by the
Adam Smith Institute.

-o-

Following yesterday’s High Court judgment, there’s no point inveighing against the disingenuousness of those bringing the case, for all that the character of their celebrations gives the game away. The truth is they are onto something: parliamentary sovereignty is a hard-won prize as well as an inconvenience to the government of the day. The judges have done their job and in due course so will the Supreme Court.

Now for a clinical look at the ruling’s 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.

The Supreme Court is to pronounce definitively in mid-January. Notwithstanding the apparent force of the lower court judgement, it also hints at avenues where the Attorney General may come up with arguments for a reversal, for example placing emphasis upon the parliamentary control opened up by the Great Repeal Bill and the impracticality (not to say lack of precedent) of legislative control of the detail of negotiations. The Court may even welcome such arguments 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. 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 quell the Lords for the time being, but make no mistake: the Upper House will not scruple from kicking over the traces once they see the Great Repeal Bill.

In addition, the legal on dit seems to be that such a vote might also be open to court challenge, with only a conventional bill with full scope for amendments in both Houses satisfying yesterday’s judgement. If this is right, May’s momentum will be definitively challenged by an adverse ruling on appeal. The government’s resort can only be accelerated enabling legislation. The conventional device to push things along, a guillotine motion, risks upsetting the Commons and in any event has restricted purchase upon the Lords. In such circumstances, May is not far away from 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 in order to avoid the taint of opportunism at Labour’s disarray. Paradoxically, a disobliging ruling in mid-January, however ostensibly unwelcome, would be just the ticket.