If the Supreme Court upholds the High Court ruling that legislation is required to initiate the Article 50 process for leaving the EU, then that will mean a bill must be read three times in both the Commons and the Lords. The danger is not that it will be voted down at second or third reading, rather that it will be amended during its committee and report stages.
As last Wednesday’s overwhelming Commons’ vote proved, relatively few MPs will explicitly vote against the express will of the voters. What they will do however, is put down amendments to try and constrain the Government’s negotiating position in order to emphasise or preserve particular aspects of EU membership that they wish to have retained, whether it be membership of the EU internal market, or its customs union, or whatever.
In the Commons the difficulty is reduced because the Government has a majority, if only a small one. In the Lords where there is no Government majority the danger is much greater.
The amendments will make success in the negotiations no more deliverable, but that is not their intent. The sole purpose of amending the bill will be to place obligations on the Government, requiring it to take account of the subject matter of the amendment when it negotiates.
Once the bill becomes an act of Parliament and the Government enters negotiations, questions will then arise as to whether it has complied, and taken proper account of the obligations placed upon it in those amendments. These questions can be subject to judicial review, and so you can bet that they will be. Be in no doubt, this is their strategy, this is the plan of the opponents of Brexit: they mean to tie the whole process up in legal knots.
The Government’s counter strategy must therefore, be to prevent its Article 50 bill being amended, particularly in the Lords. Experience from history teaches that their Lordships can be overawed by governments when those governments have demonstrated that they were determined to create sufficient new peers to secure the majority that they needed. Accordingly, I do hope that somebody in Number 10 is preparing a very long list of potential new peers, and is ready to leak it.