The UK Supreme Court has decided on Brexit by an 8-3 majority that Theresa May's government cannot trigger Article 50 without the consent of Parliament. This is undoubtedly the right decision, for two basic reasons, as I pointed out in my Huffington Post blogs going back to 12 July 2016 - first, because the referendum was purely advisory and secondly because of the fundamental constitutional principle of the Sovereignty of Parliament.
No Provision in EU Referendum Act 2015
Could the referendum have been made binding instead of being merely advisory? Certainly. The EU Referendum Act 2015 setting up the referendum would just have needed the insertion of one sentence authorising the Government to trigger Article 50 in the event of a Brexit vote. But that Act actually made no provision whatsoever for what was to happen after the referendum.
That was the fault of the laid-back and lackadaisical approach to the referendum taken by David Cameron's government -- a government only slightly less incompetent and ineffectual than its successor. Even after the Cameron government's failure to make the referendum result binding, what was there to stop Theresa May's incoming administration from taking my advice, biting the bullet and presenting a Bill to Parliament before being ignominiously forced to do so by the courts?
Theresa May has never had a good grasp of Europe. On 25 April 2016, when she still favoured "Remain", she said in a speech: "It isn't the EU we should leave but the European Convention on Human Rights and the jurisdiction of its court." Needless to say, that is no longer her position. And her six years as Home Secretary amounted to a dismal failure to do anything to control non-EU migration, over which she had complete control, and which was (and still is) a much bigger problem than EU migration. [See my blog here of 4 July 2016].
The Supreme Court has rightly told Theresa May that what is needed is an Act of Parliament -- not just a joint resolution. This will give MPs an opportunity to table amendments, no matter how short the government Bill is and regardless of any attempt to curtail debate by guillotine. If genuine parliamentary debate is stifled, another application to the court may well be on the cards.
Bad Omen for Democracy
Although the Supreme Court's decision ostensibly bolsters the power of Parliament, in the long run it is a bad omen for the future of British democracy. The judiciary, which is responsible to nobody, already has far too much power. [See Michael Arnheim, A Practical Guide to Your Human Rights and Civil Liberties]. Both the High Court and the Supreme Court rulings recognise the Sovereignty of Parliament, but the fact that the essentially political Brexit question was left to unelected judges to decide, effectively places them at the top of the pile, even above Parliament. And the fact that there was almost complete disagreement between the eight Supreme Court justices in the majority and the three dissenting justices emphasises just how little principle underpins UK law.Suggest a correction