According to the Mail on Sunday, a secret cell of Tory advisers is drawing up plans for Theresa May to call a snap general election next spring if the Supreme Court rules against the use of the royal prerogative to trigger Article 50. She would run, supposedly, as the champion of “the people versus the judges”, to gain a mandate to authorise the triggering of Article 50 and to be able to bulldozer aside any anti-Brexit opposition in the House of Lords.

Many people might well say “bring it on”. For this just shows that the Mail on Sunday still doesn’t get it. If the judges decide that only Parliament can legally trigger the withdrawal from the European Union, then that will be a decision in favour of democratic processes, not against them.

By contrast, a decision that Parliament is not needed will be a decision in favour of executive power over that of the legislature. As Frederick Wilmot-Smith, a fellow of All Souls College, Oxford, explains in the 1 December issue of the London Review of Books, what is at issue in the case is whether the executive, in the form of the Prime Minister, should be permitted to exercise a quasi-legislative function as kings did of old, or whether Parliament must remain sovereign even in the case of an international treaty.

So if a general election were to be fought in the aftermath of the Supreme Court decision going against the government, it would not be a matter of “the people versus the judges” but rather of “the people versus the 2015 Parliament”. By calling an election, Mrs May would be declaring that the old Parliament, elected by the people less than two years ago, cannot be trusted by the people to vote on Article 50 and on subsequent Brexit-related legislation, so a new one is needed.

Whether or not that is true, the advantage of an early election – and its disadvantage, from Mrs May’s point of view – is that it would force the Conservative Party to lay out a clear plan for Brexit. It would be impossible to avoid debate over whether Britain should swap its current full membership of the single market for Japanese-style “access” to it, and over to what extent immigration should be controlled.

That is a good reason to be sceptical about whether Mrs May will listen to the Mail’s “secret cell” of advisers. But whatever she decides, the judges will not thereby be crushed: their decision, if they go against the government, will be one in favour of leaving legislative actions in the hands of elected Parliaments, whether newly elected or elected two years ago.

by Bill Emmott | 12.12.2016

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