The government were disappointed by the High Court ruling yesterday that stated parliament needs to be the one to trigger Article 50, not the government via Royal Prerogative. While May needs to make as big a show of disappointment about this in public as possible, in private she may be very glad about the decision the court has come to.
The government will appeal and it then goes to the Supreme Court. But it is unlikely they will find differently than the High Court has. The government threw everything at the first case and lost, so it is difficult to see how they could play things differently next time round. Again, May has to publicly be seen to be doing as much as possible to win the next case.
If parliament does end up deciding when Article 50 gets triggered, it will not stop Brexit as some Remainers hope/Leavers fear. But it will have a big impact on two key aspects of Brexit: what kind of deal the UK seeks out post-Brexit and timing.
Deal-wise, May doesn’t have a majority in the House for a hard Brexit and she knows it. I can think of at least 15 Tory MPs that would go to the wall for single market membership (and most of them have nothing to lose as it is clear they will never serve as ministers under May). So it makes a soft Brexit, a stay in the EEA Norway type thing, much more likely.
Perhaps May secretly wants this, perhaps she does not. I think if she really doesn’t want to get boxed into soft Brexit, her only choice is to try and call an early election. But she probably wouldn’t get one anyway under this new set of circumstances.
As for timing – if parliament decides, then the government must put forward its Brexit strategy to the House and they can pick it apart for ages. Even if this doesn’t take place, it will have to go through the Lords, where it could live for up to a year if they all felt like it. So March 2017 starts to look impossible in terms of triggering Article 50. Hell, March 2018 starts to look ambitious.
All of which actually serves Theresa May perfectly well. If Article 50 is delayed through no fault of her own, she can play the martyr through it all, saying if only she had the power it would be done already. And if the delay in triggering Article 50 can last so long that the two year notice period straddles the next general election, then a more perfect electoral situation she could not ask for. Imagine the Tories going into the next election saying “Do you really want a change of government when we’re in the middle of such agonising negotiations? Do you really want to risk Jeremy Corbyn being in charge of finishing this deal off?”
Thus, the more the government has its hands tied on Article 50, the better for May. Farage and other UKIP types can bark that she secretly wanted it to happen this way all along but it won’t wash – she announced the timing of Article 50 long before she could have had any inkling that the court case would stifle her in this regard. The martyr routine will work, if it comes to that.