The Brexit legal challengers should drop the embarrassing facade that they are all about defending parliamentary sovereignty

The Brexit legal challengers should drop the embarrassing facade that they are all about defending parliamentary sovereignty

“A victory for parliamentary democracy,” declared David Green, lawyer for co-claimant Deir Dos Santos. “Process not politics” was the smug refrain from lead claimant Gina Miller as she gleefully toured the TV studios, insisting that this case was “nothing to do with leaving the EU” and entirely “about protecting our parliamentary sovereignty”.

Naturally, the fact that the case was brought by a coterie of embittered Remainers was completely coincidental, as was Miller feeling “physically sick” the day after the referendum, before suddenly developing an entirely unrelated and apolitical interest in the finer points of constitutional law.

Such was her dedication to detached and impartial legal debate, Miller was moved to slam politicians speaking out against the ruling as “absolutely shameful” for “politicising something that is not about politics.”

As Frank Field succinctly put it, “if she believes it’s about process, she believes anything.”

The case itself was not about whether Parliament could overrule Government over the negotiation of treaties – that power has been consistently been upheld as remaining under Crown prerogative, not least in a number of legal cases challenging the adoption of previous EU treaties, as well as in this case itself.

What it hinged on was whether the Government was using Royal prerogative to remove rights from UK citizens which had previously been granted by statute – namely the European Communities Act 1972 that legally brought the UK into the then European Community in the first place.

Whilst many of the examples of lost rights were somewhat bemusing – the right to vote in European Parliament Elections, or the right to take cases to the European Court of Justice – fundamentally, the case law supporting this line of argument is well-established, stemming from the Case of Proclamations back in 1610.

Prior to the case, a number of legal commentators were unconvinced that the Government’s counsel did enough to tackle this central claim head on, and it would seem that the judgment ultimately reflected this.

The Government has announced that it will appeal the decision, with the Supreme Court due to hear the appeal in early December – although there are no early signs either way as to whether the Supreme Court will choose to reverse the decision handed down by the High Court yesterday.

One unexpected source of recourse for the Government could in fact be the very Act of Parliament that has frustrated them in this instance – the European Communities Act 1972 itself.

Since joining the EU, the UK Government has passed thousands of pieces of legislation – by proclamation via the votes of Government ministers, acting on behalf of the Crown in the EU’s Council of Ministers.

Given the supremacy of EU law enshrined by the ECA 1972, meaning that the UK is legally bound to incorporate all EU law into British law, and the fact that EU law overrules UK law wherever the two come into conflict – as upheld by R v Secretary of State for Transport ex p Factortame Ltd [1990]the Government has therefore been using Royal prerogative to remove UK statutory rights for the best part of fifty years.

[Martin Howe QC et al. at Lawyers for Britain put this argument very well here.]

When people voted to restore parliamentary sovereignty, it was to end this insidious process of legislation by proclamation from Brussels, not to see it perpetuated by the use of frivolous legal technicalities on rights to vote in European Parliament elections, with some grotesque parody of “parliamentary sovereignty” conjured up as a smokescreen to obscure the mounting machinations aimed at undermining Brexit altogether.

In practical terms, there is obviously a fear that this ruling will lead to the triggering of Article 50 being delayed beyond March 2017. Should the appeal to the Supreme Court fail, Brexit Secretary David Davis has confirmed that the Government expects to have to pass a full Act of Parliament in order to trigger Article 50. This would have to navigate not only the Remain-backing Commons, but also the overwhelmingly pro-Remain Lords.

Labour MP David Lammy has already stated that he will “absolutely not be voting to trigger Article 50”, and defeated Labour leadership contender Owen Smith has called on his party to attach an amendment to the Bill to force a full second referendum on whether the UK should leave after all. The attempted passage of an Article 50 Bill would almost inevitably descend into open season for the rearguard Remainers to erect every possible hurdle in its way.

Ultimately, the law is the law and should be judged independently of extraneous political circumstances, as controversial as that may end up being in constitutional terms. But the cabal who have brought the case to court should at least drop their farcical pretence that they are a band of non-partisan constitutional law enthusiasts who have somehow been drawn together by a passion for the finer points of a 17th century legal precedent and its implications for a subtle diplomatic process point.

David Lammy may be fighting for a wholly undemocratic cause, but at least he is being sincere about it.