Today the High Court handed down a judgement that Parliament must have a vote on how and when to proceed with Article 50 (BBC, 2016). While the Government will appeal, the ruling is nonetheless a blow to Theresa May's approach so far: to interpret the 'Brexit' vote as a mandate to exclude Parliament and wield the executive prerogative.
If the ruling stands up on appeal, what might be the impact upon any future referendum in the UK? One thing at least seems clear: it would be hard for anyone to argue ever again that it was constitutional to take a referendum was a legal basis for executive action.
In the UK, certain powers are 'reserved' - that is to say, that it does not require the assent of Parliament for the Executive Body (the Prime Minister and the Cabinet) to wield them. These powers are referred to as the Royal Prerogative, thought they devolved to the Prime Minister.
On assuming office as Prime Minister, Theresa May made one particularly huge decision: to interpret the 'Brexit' result she had inherited from the referendum as a mandate to exclude Parliament and proceed with the process by exercising her executive prerogative.
That, of course, provoked a reaction from Parliament. Without pursuing the blocking of 'Brexit, some, including MPs, argued that proceeding without Parliament's involvement and consent would be a violation of Britain's constitutional process (Politics Home, 2016).
It should also raise concerns. Whatever the perception of the referendum, it was legally only advisory and non-binding. To interpret such a mandate - popular acclamation, without legal basis - as justification for wielding unscrutinised executive power, would be to set a very disturbing precedent.
As the High Court ruling itself explains, Parliament is sovereign, with the law and the constitution being assembled and drawing their authority from its Acts. The exception is where it had explicit handed over, or shared, sovereignty explicitly in the form of an Act.
Britain's relationship with the European Union is in fact defined by such Acts of Parliament. These Acts form a part of the UK's constitution - and further, they confer certain Rights and Protections extended to UK citizens by Britain's EU membership.
To try and undo a significant part of the constitution, and to take away these significant rights - including, not least, European citizenship - without following constitutional procedure, was a dangerous path for May to tread upon. So why attempt it?
Perhaps the simplest answer would be that it was the only way in which the result could not be potentially challenged, and so potentially defeated. That, however, confers upon the referendum, retroactively, powers it did not possess. The referendum was not legally binding, yet Theresa May decided to interpret it as being so.
Further, Theresa May decided to interpret the referendum result as extending to her, as Prime Minister, the executive power to alter the constitution and the rights of citizens, without the checks, scrutiny or consent of elected representatives.
If the High Court ruling stands, then that interpretation will be invalidated it what could be seen to be a significant precedent: popular acclamation is not accepted as sufficient grounds for the unscrutinised wielding of executive power.
Yet trouble lies ahead. The ruling puts the Judiciary and the 'Brexit' voters at direct odds in their interpretation of what the majority won by the Leave campaign means. The opinion of Brexiters towards the 48% who voted Remain is already low and suspicious.
And what if Parliament should reject the kind of deal Theresa May is pursuing? Even if only the deal and not the ultimate end of exiting the EU, it may well be taken as a direct affront. There may even have to be an election before such a vote could take place, as the MPs who sit in the Commons at present have no mandate whatsoever for a 'Brexit'.
The High Court ruling has begun a new chapter in the Brexit story. Parliament, with or without an election, must now weigh in on the negotiations - meaning the Government must come clean about its plan and priorities in the process of untangling the UK from the EU. But if the ruling against the appeal is successful? It would set precedents that do not bear thinking about.
References
'Brexit court defeat for UK government'; on the BBC; 3 November 2016.
'Reaction to High Court ruling on Article 50: The High Court today ruled that the Government needs to consult Parliament before triggering Article 50'; on Politics Home; 3 November 2016.
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