Article 50 and the High Court

by George Hatjoullis

The High Court has ruled that article 50 can only be invoked by an act of parliament. This makes complete sense. Invocation of article 50 is an irrevocable act by construction. It therefore constitutes constitutional change and such a change cannot be introduced simply by a unilateral order of the executive through the so-called Royal Prerogative. It requires an act of parliament in our representative democracy. This does not usurp the will of the people. The referendum was advisory and thus did not legally constitute ‘the will of the people’. It was at best ‘the advice of the people’ to their legally elected representatives in parliament. Only parliament can express the ‘will of the people’ in a representative democracy.

The decision will be appealed to the supreme court. The outcome cannot be predicted with certainty but there is little in the judgement to suggest it will be overturned. It would be best not to go to appeal and accept that parliament is sovereign just as the Brexit camp continually asserted that they wanted it to be. It is sovereign in relation to the executive and not just in relation to the EU. The Prime Minister should ask parliament to agree to a general election as soon as possible. The reformed parliament should then vote on whether to take the advice of the people as expressed in the referendum. The election campaign can be assumed to update this advice. If the newly formed parliament chooses to proceed with exit from the EU then so be it. This is consistent with our representative democracy. If it chooses to reject the advice then it should be abandoned.

An election would also allow parliament to fill out the detail of a potential exit from the EU. There are many ways to leave and the referendum shed no light on the preferences of the people. There may be Leave voters that would rather stay than accept a so-called hard exit. Only in a general election campaign can we hope to discover what Brexit truly means to most people. It would be a single issue election but given the enormity of the constitutional change being contemplated this is acceptable.

A number of Brexit politicians have reacted angrily at the judgement. This is tantamount to rejecting the rule of law. There have been undisguised threat of violence on the streets. These are the kind of people that ‘the people’ are committing to in leaving the EU. Think on this.