(Bloomberg) -- A landmark court case next week will decide whether U.K. Prime Minister Theresa May must call a parliamentary vote before triggering Brexit. She has plenty of reasons to avoid one, chief among them a reluctance to reveal her negotiating hand and concerns about delay.
The government's top legal experts head to the Supreme Court in London for four days of hearings, seeking to overturn a High Court verdict that Parliament must have a say before Article 50 of the European Union's Lisbon Treaty is invoked to formally start Britain's withdrawal from the bloc. With even many ardent pro-“Remain” lawmakers saying they won't try to block Brexit, the question arises why May doesn't just accept the court's decision.
“They may not wish to block it, but that doesn't mean to say that they won't try to use the opportunity to flush out the government's negotiating stance,” John Curtice, professor of politics at Strathclyde University in Glasgow, said in an interview. Parliament “may not say ‘no,' but they obviously do have the ability to delay saying ‘yes.'”
May is trying to keep a tight rein on the divorce proceedings, telling lawmakers repeatedly she won't elaborate on her negotiating stance to avoid giving her EU counterparts the upper hand. She's pledged to trigger Article 50 by the end of March, and is seeking to avoid a potentially time-consuming process in Parliament's two houses. Ministers argue executive privilege -- known in the U.K. as royal prerogative -- allows the government to bypass lawmakers.
Outside Forces
“The government is throwing down a very clear sign about who wields power in modern Britain -- the government and not the courts,” said Matthew Flinders, a politics professor at the University of Sheffield. “It's also an important part of Theresa May's ideology that she wants to be seen as a strong, powerful politician who makes commitments, follows through on them and isn't willing to be frustrated by outside forces.”
Those forces range from the plaintiffs in the High Court case that the government lost -- including Gina Miller, who runs an investment startup, and Deir Dos Santos, a hairdresser -- to Scottish First Minister Nicola Sturgeon, who says the semi-autonomous Parliament in Edinburgh must also have a say in pulling the Brexit trigger. Sturgeon's top legal officer is also scheduled to be in court next week.
But for May, the political hurdles may be as high as the legal ones. The bulk of House of Commons lawmakers campaigned for “Remain” in the June referendum, and May doesn't have a majority in the upper chamber, the House of Lords.
Even so, “if she puts it to a vote in Parliament, MPs will vote to trigger Article 50,” said former Business Minister Anna Soubry, who turned down a post in May's government and has since been one of the most vocal Conservatives in seeking to temper the government's stance on Brexit. “Their fear will be that it will be in some way open to amendment.”
‘Tug of War'
Soubry said she won't personally vote to block Brexit. But earlier this week, she appeared alongside Chuka Umunna, the Labour Party's former business spokesman, and former Deputy Prime Minister Nick Clegg, a Liberal Democrat, to argue that retaining membership of the European single market should be at the core of Britain's Brexit plan. The single market joins the 28-member EU with Norway, Iceland and Liechtenstein in a free-trade area that also has common regulations and product standards.
May has refused to commit to keeping Britain in the single market or the customs union, which binds the EU and Turkey in a trading zone with common external tariffs. Lawmakers may seek to put riders on a Brexit bill to flush out her stance.
“It will become potentially the focus of a tug of war in which all sorts of different amendments are tabled,” said Flinders. “The parliamentary process is like a sausage machine: It's a very irrational way to make law. You can understand why she would rather not have to put a bill through that process,” he said. “She may well have to make deals to get things through.”
Tory Divisions
In a sign of the risks May faces in Parliament, the Liberal Democrats on Thursday overturned a 23,000 Tory majority in a by-election in the London district of Richmond Park. While the Brexit-supporting incumbent, Zac Goldsmith, had quit and was standing as an independent to protest a decision to expand Heathrow Airport, the Liberal Democrats turned it into a vote on Brexit in a strongly pro-Remain seat. Their winning candidate, Sarah Olney, has said she'll vote against triggering Article 50.
There's also a risk parliamentary debates will re-expose the longstanding fractures in May's Conservatives that helped bring down the party's past three prime ministers: David Cameron, John Major and Margaret Thatcher. Already, pro-Brexit lawmaker Peter Bone has submitted his own bill seeking to hold the premier to her timetable.
“The more action there is in the House of Commons, the more divisions inside the Conservative Party on this issue become exposed,” said Curtice. “There will be the Anna Soubrys of this world who will be looking for one thing, and the Bill Cashes who will be looking for something very, very different.” Cash, a vocal Euro-skeptic, heads the Commons European Scrutiny Committee.
The government has laid out the case it will make to the Supreme Court, saying on Nov. 11 it has the power to give effect to the result of the June referendum without going to Parliament. On Thursday, it said the legislatures in Scotland, Wales and Northern Ireland also don't need a say because they don't have jurisdiction over foreign affairs.
‘Not Telling'
"We're appealing because we believe we've got a very strong case, and we intend to go to the Supreme Court and win it," May's spokesman, Greg Swift, told reporters on Tuesday.
The court won't rule until January, and Flinders said the verdict is “very unlikely” to differ from the lower court's. That would leave the Brexit trigger in the hands of Parliament.
“The government will try a short, tight bill that's framed as narrowly as possible in order to limit the opportunity for amendments,” said Curtice. “Don't be surprised if the opponents say: ‘You're now passing a resolution that we want to leave the EU; well, what are you arguing in this process?' And that will make it quite difficult to carry on saying ‘we're not telling you.'”
To contact the reporter on this story: Alex Morales in London at amorales2@bloomberg.net. To contact the editors responsible for this story: Alan Crawford at acrawford6@bloomberg.net, Eddie Buckle, Anthony Aarons
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