The Supreme Court has ruled that the Government cannot trigger Article 50 without consulting Parliament. This is good news - not because it will stop Article 50 being triggered - I think that's vanishingly unlikely - but because it confirms the supremacy of parliament in deciding the future of our country. Parliament decided that the Referendum result was not binding, that it should come back to Parliament, and it would be extraordinary if the Government could unilaterally flout the law. I also think it is good that a vote must be taken, because it means there will have to be a debate about Article 50. In a context where the country is so divided, where the referendum campaign was so poisoned by lies and even murder, structured debate can only be a good thing.
But this isn't the most interesting or important legal judgment on Brexit. Jolyon Maugham QC is launching an appeal through the Irish High Court that will ask the European Court of Justice to deliver a ruling on whether, once triggered, Article 50 can be un-triggered. That is, is there a way back? Or is it a one-way street?
This is really important.
If we trigger Article 50 and there's no going back then Brexit will, of course, happen - however disastrous the consequences for us. If the EU decided to play hardball and give us a dramatically worse deal than we have at the moment - and, let's be honest, why wouldn't they? - then we have to accept it or we are thrown on the mercy of the default WTO rules; and nobody seriously believes that will be anything other than hugely damaging for our economy. It means that neither parliament nor the people have any say again. A parliamentary vote or a referendum on the deal is between whatever David Davis et al. come back with (however rotten it is) or WTO rules. It's no real choice at all.
But if we trigger Article 50 and it can be rescinded, the situation is very different. The choice then becomes between accepting the EU deal, WTO rules, or rescinding Article 50. And note: this doesn't mean stopping Brexit; it means not having to accept a Brexit to the EU's timetable. If we don't like the deal, we can rescind Article 50, go back to the EU, negotiate another deal. It hugely improves our negotiating hand: if we can rescind Article 50, we can potentially keep the Brexit process going on for ages, which the EU certainly don't want, so it would offer a real incentive to offer us a better deal.
But we have a problem. It looks unlikely that we will get a ruling on Jolyon Maugham's question for months, possibly not even for a year. And Theresa May has said she wants to issue the Article 50 Bill in the next few days. This means MPs will be voting on triggering Article 50 without having the slightest idea what triggering it actually means. Is it the first stage of a negotiating process? Or a one-way ticket to who-knows-where?
Of course, we know why the Brexiteers are so keen to press ahead. The longer this process goes on, the more apparent are the deep problems that we will face outside the EU. They want us to leap before we look. But this is why the Supreme Court ruling today is good news. Parliamentary debate is part of the system of scrutiny, part of the checks and balances that should allow a nation reasonably to assess the decisions it wants to make. We should look before we leap.
The Remain camp has an advantage over the Leavers. The Remain group are broadly in agreement that the EU isn't perfect but we are better in and sitting round the table than out and without a voice.
The Leavers do not agree on very much. The Ukippers (Nigel Farage et al.)just don't like immigrants and they think getting us out of the EU will be the beginning of being able to stop foreigners coming into our country. The free-marketeers (Dan Hannan et al.) don't like the regulations and harmonisation of workers' rights across the EU, but would like to stay in the single market or customs union without it. The ultra-free-marketeers (John Redwood et al.) think outside the EU we will become a buccaneering, entrepreneurial low-tax, low-regulation freebooting international tax haven, nipping nimbly around the world making bilateral trade deals with the world's grateful nations. The Lexiteers (seemingly Jeremy Corbyn et al.) like the workers rights, but don't want the single market. I guess there are some constitutionalists like Michael Gove who think Britain should not be subordinated to the European Parliament. And there are some tabloid readers for whom the EU is a bunch of bureaucrats who want to straighten our bananas and who think leaving will make very little difference.
These visions of a Britain outside the EU are incompatible and the Leave group will start to fragment (it's already clear that Farage is detested by all the other wings and indeed 100% of his parliamentary party). At that point, the pell-mell race to dive over the Brexit cliff will lose the patina of majority. It will be clear that this is less the will of the people and more the will of Farage.
It's why we must insist on parliamentary scrutiny. Not because it will stop Brexit, but it will stop Brexit-at-any-cost. It may even get us a better Brexit.