Just when you thought the Brexit chaos had settled down, an entrepreneur threw in a curve ball and took her concerns to Britain’s High Court, who ruled that the United Kingdom could not leave the European Union without the matter being passed through the House of Commons.

For Prime Minister Theresa May, who was looking to start the process of cutting ties with the EU in March next year, this is a serious blow. First of all, there’s a risk — albeit unlikely — that parliamentarians will vote against leaving the EU. Even if they vote to leave, the vote could delay and chance the process.

Does this give the Remain supporters another chance? What does this mean for Theresa May? Here’s a look at what might go down.

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Could Britain remain in the EU after all?

The short answer is probably not. British politicians widely accept that Brexit is going ahead and that they are expected to respect the peoples’ vote in the referendum.

But the vote could change the way the exit is managed.

ANU constitutional law expert Dr Ryan Goss explained to Crikey the question now wasn’t whether Brexit would go ahead, but who would act on the referendum result, and how.

The government would prefer to sort out all the details of Brexit, such as timing.

“The key fight that has been on foot since the referendum was who would get to pull the trigger,” Goss said.

“What the High Court have said is that the trigger must be pulled by Parliament, not by the Prime Minister and the executive government acting alone.”

How will the UK actually leave the EU?

Theresa May famously announced: “Brexit means Brexit”. But now people are starting to question what else Brexit actually means — it’s still not clear what the end result will be like.

For instance, how will it impact immigration, or European citizens living and working in the UK, or trade?

This High Court ruling means Parliament is given more of a say in shaping what Brexit will look like, according to Goss.

“This is one of the major flaws, in my view, in the design of the referendum in the first place, is that there was no clear sense of what Brexit would involve,” he said.

Who took Brexit to the court?

A businesswoman from London named Gina Miller led a small group of people who fronted the legal challenge. Miller, 51, heads an investment firm called SCM Limited with her husband. She’s been involved with campaigns aimed at reforming the charity sector, as well as for transparency in pension funds and investment.

Miller told The Guardian she feared Britain had a “treacherous future” if Brexit went ahead as planned.

“Unless we have the legal certainty to know what we’re doing as we go forward is binding, then who knows what the future will have in store for us? We could be walking into so many legal challenges and nightmares. Isn’t it better that the legal certainty is ruled [on] now rather than later?”

What is Theresa May doing about the High Court challenge?

Theresa May and the government have appealed to Britain’s Supreme Court. Unlike Australia, the Supreme Court in Britain is in fact higher than their High Court, so the appeal can beat the High Court ruling.

The appeal is expected to be carried out on December 7, but there’s speculation it will wind up in the European Court of Justice.

Is Britain headed for an early election?

The next UK election isn’t due until 2020, and May has said she will serve out her term until then. But this ruling boosts the possibility of an early general election.

Prior to the High Court’s decision, there was already speculation May would call an election later this year or early next year to garner more support in Parliament, particularly before she starts negotiating Brexit in Europe.

If the High Court judgment is upheld by the Supreme Court, the case would be stronger for an early election. May would want her Brexit agenda supported as much as possible if Parliament were involved in the discussions, according to Goss.

“A lot has changed this year, it wouldn’t take much for her to justify an early election,” he said.

Will Brexit be delayed?

The Telegraph revealed Brexit could be delayed by a year, according to their sources.

At this stage, it seems that the Supreme Court will hear the case in December and likely make a judgment in January. If this is the case — assuming the Supreme Court follows the High Court’s ruling — Parliament would need to vote between January and March for there to be no delay.

This is a relatively small window, and it means any member of parliament who wanted to delay or inconvenience the Prime Minister could try to do so by dragging out the vote.

“The politics of that are going to get very complicated very quickly. There is absolutely the possibility it could be delayed, but we’re going to have to wait and see a little bit more,” Goss said.


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Peter Fray
Peter Fray
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