So at mid-day today the High Court has ruled that the Government must get Parliamentary approval to invoke Article 50. What are we to make of this?
The most obvious consequence will be to slow down the Brexit process. The Government's appeal to the Supreme Court won't come to a conclusion till January. If HMG loses, there may have to be an Act of Parliament, which can be held up by MPs or by the Lords. Clauses could be inserted which tie the Government's hands, and it might even be defeated altogether. Mrs May's stated intention of invoking Article 50 by March looks dead in the water. Months of uncertainty await.
Twitter has been awash with gleeful Remainers, pointing out how funny it is that Leavers, having so desperately wanted Parliamentary sovereignty, have been effectively hoist by their own petard. Parliament, the Court has said, is sovereign, and the Royal Prerogative does not extend to overturning Parliament's 1972 legislation putting Britain into the EEC (as it then was).
There are two responses to this, one glib and one more complex. The glib one is that it is also of course comic to see Remainers, happy to see Parliament's sovereignty eroded by EU membership, trumpeting its merits from the rooftops when it suits them.
The more subtle point is that by having a Referendum at all Parliament deliberately chose to step outside our system of representative democracy. It went directly for the democratic jugular. The Court's statement that Parliament is sovereign looks weak and irrelevant when you consider that sovereignty only arises because Parliament has a mandate from the people. No electoral mandate in my lifetime has ever been as specific as that delivered on 23rd June.
Parties run for election on an extensive electoral programme and it is a rare voter that likes everything about the party he votes for. The Brexit referendum was about one issue only however, and Leave won.
Just how exactly, in circumstances where a one-issue Referendum has given the Government a specific mandate, does Parliament's sovereignty trump the clearly expressed will of the people?
The truth is that by granting a Referendum in the first place Parliament opened up the possibility of a second form of democratic legitimacy, running alongside (and potentially in conflict with) the legitimacy of Parliament.
It's worth pausing a moment in this potential conflict to consider just how much of a mandate pro-Remain MPs actually have. I heard Labour MPs Keir Starmer and Pat McFadden on WATO this lunchtime arguing for Parliamentary approval for the triggering of Article 50. But both these men fought tooth and nail in the 2010 General Election to prevent any referendum happening. They lost. They then fought tooth and nail for the Remain campaign. They lost again. In what world do they think they should legitimately be able to delay or stop Article 50?
The same goes of course for the Lib Dems, SNP and Greens.
The historian Tom Holland summed up the present dilemma very well when he Tweeted, 'I'm wondering if Britain has ever before had to decide which is the more important: democracy or the rule of law'.
Ah yes, the law. The court decided, as I said, that the Royal Prerogative did not extend so far as to enable HMG to put in train a process which, after two years, must involve the nullification of the 1972 legislation (it could have circumvented this point by arguing that Art 50 could be revoked part way through, but apparently did not). Outwith the Prerogative, only Parliament can make or unmake UK law.
That's the theory. I am familiar from personal experience with the way the law works. What often happens is that the judges decide which party looks like the more meritorious and then tries to find a defensible legal way of finding for them. The three High Court Judges have said that their decision is not political, but these are men who will have had a view on Brexit long before they ever imagined they might find themselves being involved in such a life or death decision. Who are they and what do we know about their background?
Baron Thomas of Cwmgiedd is the Lord Chief Justice of England and Wales. He is one of the Founding Members of the European Law Institute, a non-profit organisation devoted to European legal development.
Lord Justice Sales, a.k.a Philip Sales QC, is an old friend and colleague of Tony Blair and Derry Irvine, those well-known Eurosceptics.
Sir Terence Etherton, the current Master of the Rolls, is the first High Court judge to enter into a civil partnership.
No doubt these three men did their very best to come to a fair decision on the law and facts. But their education, status, and financial and social position are typical of those who benefit from EU membership and who voted to Remain in it.
Lord Thomas should have recused himself from the bench for this case. The website of his brainchild, the European Law Institute, says it is devoted to 'better law-making in Europe and the enhancement of European legal integration'. It goes on to say that one of its core tasks is 'to evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the Member States'.
And yet, amazingly, this man's verdict obstructs the path to Britain's leaving the EU. Who could have predicted that?
Justice may have been done, but it doesn't much look like it.
PS In the 24 hours after I wrote this I've come upon the utterances of three legal academics who say the Court got the law wrong. Mark Elliott, Professor of Public Law at Cambridge University writes that the conclusion "is highly contestable. Perhaps . . . the most surprising aspect of (the case) is that the confident certainty of the terms in which the judgment is framed obscures almost entirely the complexity and contestability of the questions to which it gives rise . . ." Ouch.
John Finnis, Professor of Law and Legal Philosophy at Oxford, points to clear parallels between the way that the Royal Prerogative is used to change the law in relation to some tax provisions and the manner in which European elections are called, on the one hand, and the way HMG proposed to trigger Article 50 on the other. In Prof Finnis' words "no one should doubt that notification under Article 50 of the The European Union can likewise (be done without any Parliamentary approval)." Prof Finnis doesn't appear to think much of HMG's legal team.
Thirdly barrister Carl Gardner writes, "the judgment is surprising, it's problematic, and I think it's wrongly decided". The High Court thinks that triggering Art 50 would change the law, and that the law can't be changed except by Parliament. But Gardner thinks that the Court is confused about this, and that the executive often does change the law without recourse to Parliament. Gardner's ringing conclusion is worth quoting at length - "If in 1972 Parliament really did end the government's power by prerogative to (as the court thinks) change UK law by doing anything that alters EU law, then surely every change to EU treaties agreed by Prime Ministers have been unlawful. Why, if this judgment stands, was it lawful for Mrs Thatcher to agree to the Single European Act? Why was it lawful for Mr Blair to sign up . . . to the Social Chapter. The High Court implies . . . that he had no prerogative power to do so. . . What power have ministers ever had to agree . . . to EU measures such as Directives that (as the High Court sees it) change the law in this country when adopted? It seems to me at least arguable that, according to the High Court, all of this was unlawful."
Gardner thinks the Supreme Court won't overturn the decision though.
PPS I've now read commentaries by seven (pro-Remain) legal academics. They all think the Court was wrong.
