Here’s the judgment that the Supreme Court should reach in the Article 50 case

Here’s the judgment that the Supreme Court should reach in the Article 50 case

James Hannam crafts the judgment he would like to hear from the Supreme Court in the Article 50 legal challenge later this month…

This case is an appeal by the Government against a decision by the High Court that it must seek consent from Parliament before it can trigger Article 50. The High Court, quite correctly deciding the case according to existing precedent, interpreted the question in terms of the legal balance of powers between the Crown, acting through the Government, and Parliament.

In so doing, the High Court attributed no legal significance whatsoever to the referendum of 23rd June 2016. Indeed, in our view, had the Government, hypothetically, refused to implement the people’s decision to leave the European Union, the High Court would not have required it to do so.

However, the High Court erred in its decision because it decided the case on the basis of the British constitution as it stood fifty years ago (which says nothing of referendums), rather than the very different state in which it is in today. The British constitution is not written down. Instead, it is fluid collection of statute, custom and convention, which can change gradually and organically.

Sometimes a change is well-entrenched before the courts even recognise it has actually happened. We believe that this is such an occasion and, as a result, the referendum must be given not only legal but also constitutional significance.

It is often said that ultimate sovereignty in the United Kingdom resides in the Crown in Parliament. The Tudor monarchs used Parliament as an instrument of tyranny, but the recklessness of the Stuarts, as well as later developments, swung the balance ever further away from the Crown. Today, the monarch has faded into the background, while legally the Crown is simply the Government, which other countries’ jurisdictions call the ‘executive’.

We would observe that, as a matter of fact, ultimate sovereignty no longer resides in Parliament: it resides in the British people. This is an empirical observation. True, the people usually delegate their sovereignty to a Parliament that they have appointed through democratic elections every five years. But they have the ability to assert their sovereignty directly through a referendum when invited to by Parliament.

Indeed, on certain questions, a referendum must now be considered mandatory. For example, it is accepted that to radically change the voting system of the House of Commons requires the people’s consent. Likewise, Welsh, Northern Irish and Scottish devolution had to be confirmed by the relevant segment of the people in a referendum. Only a referendum can abolish the monarchy, or join or leave the European Union.

In other words, it is already a widely accepted convention, which we now merely restate in formal legal language, that any fundamental change to the British constitution can only be made by through the instrument of a referendum. And once the people have spoken, the Government must carry out their wishes.

It should be clear to this end that the aim of the respondents to this appeal is to delay and then to prevent the UK from leaving the European Union. While their case is dressed in the legal finery of constitutional niceties, their problem is fundamentally a political one: they disagree with the sovereign decision made by the British people on 23rd June 2016.

Courts must examine the substance rather than the legal form of the evidence before them, and that is the substance of the respondents’ challenge. That is something with which this Court is powerless to help them.

However, we can expand a little on our decision that the referendum result was a sovereign decision of the British people which the Government must carry through. It means that only another referendum can overturn that decision. A General Election alone would not suffice because the results of elections are determined by a multitude of unrelated questions. And only Parliament can call a new referendum.

Furthermore, Parliament does not require the Government’s permission to do this: it could pass a referendum bill in both houses and have it on the Queen’s desk by next week. It is not for this Court to tell Parliament what it should do. We would only say that if Parliament found itself in conflict with the British people, this would be a struggle that Parliament would ultimately lose.

Furthermore, we can tell the Government what it must do: it must execute the sovereign decision of the British people to leave the European Union to the best of its ability and with the minimum of delay.