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Will (Hard) Brexit Be Defeated by the Spirit of Magna Carta?



A fresh cloud of uncertainty hangs over Britain’s negotiations to leave the European Union now that the UK High Court has ruled that the government of Prime Minister Theresa May must seek parliamentary approval before the talks can begin. It remains highly unlikely—but hardly impossible—that Brexit will be abandoned. But for now it exposes the hypocrisy of May’s government position of wanting to repatriate all EU political powers back to the United Kingdom on the one hand, but wishing to deny the country’s sovereign lawmakers a say in how or when the Article 50 process is to be initiated and conducted on the other.

May’s government is appealing the court’s decision to the new UK Supreme Court. Established only in 2009, the Court now faces its first high profile political case at a time when nothing is known about how it will handle the intense political and media interest in the case. Warnings against activist judges overruling the will of the British people on Brexit will play prominently in the public debate in the weeks ahead, deepening British divisions on the issue.

May’s interest in retaining control over the Article 50 process and avoiding an outright parliamentary vote is understandable. She clearly does not want to test her party’s unity on the issue. Better to pretend that “all Tories are Brexiteers now.” Greater scrutiny is certain to focus on May’s intentions for Article 50 negotiations, as members of Parliament (MPs) demand details of such important but secret negotiations. Forcing her to share her strategy for Brexit negotiations with Parliament, the British public and by extension other EU governments will diminish her negotiating latitude.

Parliament, for example, is likely to extract a political price in return for authorizing negotiations to begin, but not so far as to block such talks outright. The MPs could easily delay the vote on grounds that the government’s Brexit Department remains largely unstaffed while the issues are complicated. May’s target to begin negotiations by the end of March 2017 hence looks precarious.

Also, in deciding when to launch Article 50 negotiations, Parliament will likely be sensitive to the wishes of the 48 percent who voted to remain in the European Union, perhaps curbing May’s negotiating freedom. A majority of MPs may even try to keep the European Union’s commitment on free movement of labor in return for keeping access to its internal market. Or they may wish to remain in the EU customs union. A delay in an up-or-down vote on the final Brexit Agreement, or even sending it to voters for another referendum, cannot be ruled out.

Whatever happens, the court ruling has dealt a blow to the small right-wing clique of hardcore euro skeptics in the Conservative Party and May’s government, likely cheering financial markets and those advocating an internationally engaged Great Britain. If hard Brexit is less likely, so is the eventual breakup of the United Kingdom from a Scottish secession.

The potential direct involvement of Parliament also—somewhat perversely—is good political news for Jeremy Corbyn, leader of the Labour Party. His only path to becoming prime minister is the one that opens up if May and the Conservatives completely botch the Brexit negotiations. Corbyn thus has clear incentives to use the new situation to try to sabotage May’s policies.

The same logic applies to the rest of the European Union, which from the euro crisis has ample experience in engaging in sustained political pressure on a national parliament. The greater the voice of MPs are in the Brexit negotiations, the more susceptible government policy will be to political hardball and sustained economic pressure from the European Union. MPs after all have to look after the interests of their individual constituents, who may over time change their minds about what Brexit should mean. Logically, the EU negotiating position should therefore harden further after today’s ruling.

These developments make it more likely that May will soon be forced to call an early election to seek a new mandate on Brexit. If Parliament imposes excessively onerous conditions on her Article 50 negotiating mandate, she may have to go back to the British people for a better one. The Conservatives would probably win, but an accelerating economic downturn, the United Kingdom’s first past-the-post-electoral system, and a potential rallying of Remain supporters, could spring a surprise.

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