Theresa May’s Brexit plans at crossroads; key court hearing looms

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The British government faces a crucial court hearing this week that will determine the fate of its plan to pull out of the European Union.

Britain's Supreme Court begins hearing arguments on Monday on whether Prime Minister Theresa May and her cabinet can trigger the EU exit mechanism, which is Article 50 of the Lisbon Treaty, without approval from the British parliament. A lower court has ruled that the cabinet cannot act alone, giving renewed power to Members of Parliament and members of the House of Lords who oppose Brexit. The government has appealed the ruling to the Supreme Court and in a sign of the importance of the issue, all 11 justices will hear the case and issue a decision next month. It's the first time all of the court's judges have ruled on the same matter.

In a further twist, the governments of Scotland and Wales have been allowed to intervene in the case. They will argue that because pulling out of the EU impacts powers they have been given through devolution, any move to trigger Article 50 requires the consent of the Scottish and Welsh assemblies. That would complicate matters even more for the May government since more than 60 per cent of Scots voted not to leave the EU in last June's referendum.

Most legal experts expect the Supreme Court to uphold the lower court ruling and give the U.K. parliament the power to approve the triggering of Article 50. If so, that will throw Ms. May's Brexit plans into disarray.

The Prime Minister had planned to invoke Article 50 before the end of March, starting a two-year process to withdraw from the EU. But it's unlikely that will happen if parliament has to first pass legislation to trigger Article 50. Most MPs and members of the House of Lords didn't support Brexit, and some MPs have already said they will vote against Article 50 legislation if certain demands aren't met. The House of Lords could also delay the legislation. Even if a bill invoking Article 50 is passed and the negotiations to leave the EU begin, the Supreme Court could also rule that parliament has the power to stop the process at a later date.

The government is already facing growing pressure over its approach to Brexit and whether the country should try to keep some connection to the EU. Ms. May hinted at a party conference in October that she preferred a "hard Brexit," which would mean breaking completely with the EU and then negotiating a trade deal. That would allow the government to gain control of EU immigration, a key issue in the referendum campaign.

That position has softened somewhat recently because business groups have raised concerns about the loss of free access to the EU single market and the end of "passporting" privileges for financial services firms, which allow them to set up in London and serve clients across the EU. Some cabinet ministers have now suggested that Britain might agree to pay EU fees in order to maintain some access to the single market. However, the EU has made it clear that that access requires accepting the free movement of people. And many pro-Brexit MPs oppose keeping any ties to the EU.

A growing number of MPs seem ready to push the government toward a soft Brexit. On Saturday, Opposition Leader Jeremy Corbyn of the Labour Party said his MPs would introduce amendments to any legislation triggering Article 50 to ensure the final deal protected social programs, workers' rights and other measures. "We all have to accept and respect the referendum outcome," Keir Starmer, Labour's spokesman on Brexit told the BBC. "But we have to fight against a hard Brexit." The leader of the Liberal Democrats, Tim Farron, has said his party will vote against triggering Article 50 unless the government commits to holding a referendum on the final terms of Britain's exit from the EU. The party has only nine MPs, but it scored a major upset last week by winning a byelection where Brexit was a big issue. The Lib Dems also have more than 100 peers in the House of Lords, which has 825 members.

"This was not just about a Remain versus Leave rerun," Mr. Farron told reporters Friday. "This was about people trying to say to Theresa May, 'We do not like the extreme version of Brexit outside the single market you're taking us down.' "

There are more legal challenges brewing. British Influence, a think tank, is heading to court to argue that triggering Article 50 doesn't automatically take Britain out of the European Economic Area, which is essentially the single market. The government has insisted that leaving the EU automatically pulls Britain out of the EEA, which came into effect in 1994 and includes all EU members plus Norway, Iceland and Liechtenstein. But lawyers for the think tank say the EEA Agreement has its own exit mechanism that must be triggered. And they say that too must be approved by parliament.