The High Court ruling preventing the Government from issuing a notification under Article 50 of the Treaty on the European Union has come as surprise. It misses the fact that Parliament passed the law allowing for a referendum giving the British people the authority to decide. In the judgement of the Court it notes that as a matter of law ‘the judges know nothing about any will of the people except insofar as that will is expressed by an Act of Parliament and would never suffer the validity of a statute having been passed or being kept alive in opposition to the wishes of the electors.’ This is correct and sensible but the judgement then seems to ignore the right given to electors by statute to make the decision to withdraw from the European Union. As this departure can only be legally affected by using Article 50 the judges have decided to overrule the people as empowered by their own Parliament.
There has been a growing problem of judicial activism which has seen the courts being used as a method of pursuing political objectives through other means. This is seen in the rise of judicial review and has increased the power of the Judiciary against both the Legislature and the Executive. It is concerning that the judges decided to raise the European Communities Act 1972 to the status of a constitutional act without approval by Parliament and used it to overrule subsequent Acts of Parliament. Similarly, the courts never used their powers to stop the Executive giving more authority or competence to the European Union in spite of being asked to on a number of occasions, including by my father concerning the use of the Royal Prerogative in relation to the Maastricht Treaty. It appears as if the judges are trespassing into areas that are not so much legal as political and thereby endangering the separation of powers. This doctrine which is clearly formulated in the United State Constitution is one that our unwritten constitution has followed for centuries and ensures that the each part of our settlement respects the authority of the other two parts.
Although I hope that the Supreme Court will be more cautious in its approach it is possible that this landmark constitutional judgement preventing the Executive from carrying out the ordinary consequence of an Act of Parliament will stand. In which case Parliament must legislate. This could be done through a small bill that merely gives a Minister the right to give notice under Article 50 and need not run to more than a couple of clauses. Such a bill could be passed within hours but it is possible it could be obstructed. The two potential forms of obstruction are sore losing Remainers in either the House of Commons or House of Lords. It would be a foolhardy Member of Parliament who decided to challenge the clear will of the British electorate and many remain MPs who I have spoken to would not seek to do so. However, in the event that the bill did not pass the House of Commons it would be necessary to make it a matter of confidence and have an early General Election. In the more likely event that the House of Lords refused the bill then a thousand peers would have to be created for we would be in peers versus the people territory akin to 1909-11. When this happens the Lords always loses.
The United Kingdom will leave the European Union and this decision ought not to cause any delay. Nonetheless, the Judiciary is causing an unnecessary constitutional clash and one of the advantages of leaving the European Union is that there will no longer be any law superior to an Act of Parliament which may put the Judiciary back into its rightful role.