Se vince il governo, nulla di fatto e invocano l'art 50 a marzo si suppone, come promesso.
Se il governo perde l'appello si allunga il brodo infinito.
Qui spiegato nel dettaglio il perchè il brodo si allunga infinito
After the High Court?s Brexit decision, forget about activating Article 50 in March | FT Alphaville
This guest post is by Jolyon Maugham QC, a tax lawyer at Devereux Chambers who writes on tax policy and helped crowdfund the legal action to ensure parliament gets a vote on activating Article 50.
As every Alphaville reader will by now already know, the government this morning failed in its attempt to keep from parliament the most important constitutional decision of our generation: whether, and if so under what conditions, to trigger Article 50, the process that the government contends will inevitably lead to our withdrawal from the EU.
This outcome is the fitting and logical denouement to a Brexit campaign that seemed to many to be about returning control over the UK’s affairs to its elected representatives.
But what, in practice, will that outcome mean?
To understand the answer to that question we need to consider, first, the prospects and consequences of an appeal. And, second, what happens if that appeal fails.
Shortly after the decision was handed down, the government announced it would appeal. That appeal is likely to be heard in the Supreme Court in early December. The government should not be confident — and appealing is no free hit.
Lingering, unaddressed, in the background to this litigation is a question about whether an Article 50 notification is reversible. The High Court in reality proceeded on the assumption that a notification, once given, could not be withdrawn. But the Supreme Court has a different legal obligation and it might feel legally compelled to address that assumption directly.
Addressing it would require a politically explosive referral to the European Court in Luxembourg – the question whether a notification is reversible is one of European law – with a likely delay of around three months. And a finding by the Supreme Court that an Article 50 notification could be ‘pulled’ would leave ajar the door to a prospectively damaging continuation of the Referendum campaign until such time, if any, as our exit is formalised.
But let us assume that there is an appeal and the appeal fails. What then?
The government will have to draft a Bill and place it before parliament. And that Bill would have to pass both Houses of parliament.
There would in the Commons be – and I think, rightly – little or no enthusiasm for rejecting it. More likely is that MPs would impose conditions on the triggering of Article 50. And they would be right to do so as it cannot sensibly be argued that the referendum answered the fundamental question of what Brexit means
For some Leavers it is about immigration. For others it is Taking Back Control. Many say it is about the £350m. Who is to pick between these sometimes competing objectives? MPs may, unsurprisingly, take the view that that is a matter for them – and not for someone who, at least in her capacity as Prime Minister, has a rather weak democratic mandate.
And, of course, many MPs will also feel that in shaping the terms of Brexit they should have regard to the wishes of those who voted to Remain. The Referendum asked whether we should leave the EU. It did not ask whether the 48 per cent should lose the opportunity to help shape a country that belongs to them too. These choices and their consequences, are enormous questions that are fundamental to the life of our nation. MPs may feel they are for parliament to answer.
What in practice this is likely to look like is parliament constraining the government’s negotiating position. It is not inconceivable that parliament may wish to choose whether to accept the outcome of the negotiations. Indeed, it may even require that the deal negotiated by the government be put back to the people in the form of a second referendum.
Such a course would be wise. No one knows what Brexit means. It is possible that, as its advocates have contended, it will deliver greater democracy and prosperity. But is also possible that, as time goes on, the sunlit uplands foreseen by Boris Johnson dissolve into mere mirage.
Imagine this. It is November 2018. The promised trade deals have failed to appear. Unemployment and inflation are on the rise. The public mood towards Brexit has turned ugly, and so have negotiations with our biggest and nearest trading partner. In that world, any rational MP would wish that, back in November 2016, she had left ajar the door to remaining in the EU. Why make the decision now, with modest evidence, if you have the opportunity to make it later with more?
These points will be debated in the Commons and they must also be debated in the Lords.
And, in practical terms, it is difficult to contemplate that these steps – drafting a Bill, debating it in the Commons, voting on amendments, placing it before the House of Lords and then addressing amendments introduced by the Upper Chamber in the Commons again – can sensibly be taken after the result of the Supreme Court appeal is known but before March.
So, whatever else the decision means, unless the Supreme Court overturns the High Court’s decision, Theresa May’s March deadline will be ancient history.