The Divisional Court of the Queen’s Bench Division of the High Court has today declared that there is no prerogative power to invoke the famous Article 50: it has to be done by Parliament. None of the reports I have yet seen tells me exactly how Parliament has to make the decision (whether Act of Parliament or simple vote), but I hope a study of the judgment may reveal that.
At the moment I am like almost all my readers: I haven’t read the judgment, all I have seen are the noisy comments of those on each side of the argument (those who want the popular vote to be disregarded and those who want it to be honoured).
Within minutes of the judgment (it is very long) being delivered politicians rushed to the awful Twitter machine to give their considered opinions on what the judges had said. It was all boringly predictable. Those who disliked the decision went on and on about dreadful pinkoe judges ignoring the law. Those who liked the decision expressed their new-found love of Parliamentary sovereignty and the rule of law.
As I have said, I haven’t yet read the judgment (which ranks me with every politician who has expressed a view on it). All I will say for the moment is that, though it would be naive in the extreme to believe that the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales did not allow whatever their prejudices are to influence their decision, I deprecate, in the extreme, the appalling comments of some Brexiteers to the effect that their Lordships were motivated only by their desire to prevent us from leaving the EU.
I know that the arguments on both sides were very strong. I know that the judges (I do accept that they are probably all remainers – because that is what Islington folk are) will have been determined to put aside their prejudices (in so far as that is ever possible) when weighing up the arguments. I am quite prepared to believe that the judges’ decision was not plainly wrong (though if they didn’t say whether there should be an Act of Parliament or a simple vote I do have to say they fell down in their duty).
I must now read the judgment. When I have done that I will say whether I agree or disagree with the Divisional Court. But I doubt, if I come down against them, that I will indulge in the sort of abuse of the judges which many Brexiteers have chucked about with gay abandon.
Actually, of course, all depends on the views of the Supreme Court. We must wait for their decision. My guess, even though I haven’t read the judgment in the Divisional Court, is that the majority will agree with it. The Supreme Court is much more political than our other courts and most of its members will be confirmed opponents of the people being allowed a say on anything as important as our membership of the EU. Nevertheless, I am longing to read Lord Sumption’s dissenting judgment. It is likely to be a masterpiece.