A short while ago I explained that it was necessary for me to read the Divisional Court’s judgment before expressing any opinion as to whether the court was right or wrong to declare that the Crown had no right to start the procedures for our departure from the EU.
I have now read the judgment. I had assumed that it was very long. In fact, it is rather short. A lot of it makes sense, but it suffers from not being what one might call a deep inquiry into the law. Yes, there are a few obligatory references to Dicey, but it is not a judgment which will find its place in future histories of our constitution.
That is not to say it is wrong. Enoch Powell, who was a late convert to the anti-common market cause, maintained that the European Communities Act was almost unrepealable. Whatever one thought about Parliamentary sovereignty, he asserted, it would be impossible for government or Parliament to undo the wrong done to us by our accession to the Common Market: parliamentary sovereignty was lost for ever. I disagreed with him. I have always thought that we could get out of Brussels tyranny. But I do see it is not all that simple. Today’s judgment demonstrates that Powell may have had a point.
But I do maintain, whatever Powell said, that it is possible for us to leave the EU. The Divisional Court may be right to say that Article 50 can’t be triggered by an exercise of the royal prerogative (we must hope that the Supreme Court treats the issue more seriously than the Divisional Court did). But that isn’t the end of the discussion.
I do not expect the Supreme Court to come to a different conclusion. It is more and more a political rather than a legal body. And most of its members are almost certainly fanatical remainers. That said, I would hope that the Supreme Court might be prepared to say what is meant by parliamentary approval of triggering Article 50. The Divisional Court was silent on that point. We have not been told whether a simple vote in the House of Commons, a vote in both Houses or an Act of Parliament is necessary. It seems to me, following the logic of the judgment, that an Act of Parliament is needed.
Plainly, Mrs May should be instructing her civil servants to draft a short Bill permitting the government to trigger Article 50. She should, of course, wait for the Supreme Court decision before proposing the Bill to Parliament. But, assuming that court dismisses the government’s appeal, she should immediately press ahead with it.
The probability is that the Commons (populated by people who depend on the votes of the electorate) will pass the Bill. Even Tony Benn’s son (who violently disagrees with his father’s support for parliamentary sovereignty and opposition to the EU) has said we must respect the result of the referendum. He and many other Labour MPs have said they will vote for the triggering of Article 50. Ken Clarke and Nicky Morgan may vote to stay in the EU, but hardly any other Tory members will do so. The overwhelming likelihood is that the Commons will support the Bill.
Yes, I know. The Lords, a body now made up of dreary political appointees owing their peerages to Tony Blair, David Cameron and Nick Clegg, might well reject an Article 50 Bill. If that happens we must have an immediate general election. Once that has happened, with the inevitable result of an increased Conservative majority, Mrs May must have no hesitation, if the Lords persist in opposing the will of the people, in advising the Queen to create hundreds more peerages to ensure that the electorate prevails.
The assumption that today’s court decision has stopped Brexit is nonsense.