This was a most unfortunate case. It is curious that it was considered at all in the High Court of Justice in England. The matter before the Court was clearly a UK wide matter, yet it was considered by an English Court. If ever an issue was designed to be handled by the High Court of Parliament rather than by some lesser court, this was that issue.
In the past Courts have been rightly wary of presuming to tell Parliament what it should and should not do. Of course courts need to be vigilant and active over possible abuses of power by government. It is not, however, their job to tell Parliament what it should debate and what it should vote on . It would not be practical each week to agree our agenda with what the Judges wanted us to do.
As the judges wished to trespass into this territory they should have acquainted themselves better with Parliamentary procedure and the recent Parliamentary timetable. They would have discovered that Parliament has had plenty of allotted time for debate and questions on Article 50 and general Brexit in both government and Opposition time. They would have realised that if the Commons wanted a vote on Article 50 the Opposition could at any time table a motion to require one in Opposition time. It could formally ask the government to table one, though the government might reply they should table one themselves. The fact it has not done so implies that the Commons accepts an Article 50 letter will be sent. Indeed, many Labour MPs have confirmed they agree with sending a letter, as does the government side.
It would also have been wise if the judges had read the leaflet sent to every household by government at taxpayers expense with Parliament’s approval stating clearly the people were making the decision to leave or remain. They could also have read the many Hansard references stating the people will make the decision in the referendum. This was not an advisory referendum in any normal sense of that word. They could also have consulted the official literature of the two referendum campaigns and seen that one of the few things they agreed on was the people were to make the decision. The reason Remain rhetoric was so hyped about the dangers of leaving was their recognition that the people might make the wrong choice in their view. The vote of the people should be more powerful than the views of three judges.
The other main argument the judges used was the bizarre idea that prerogative powers of Ministers can never be used to change UK law. What do they think has been happening for the 44 years of our membership of the EU? Time after time Ministers have consented to an EU law under prerogative powers which directly changes UK law. Why did they approve and encourage this process, and then turn round when we wish to use the same method to restore UK Parliamentary control and say it cannot be done? Given that this is to implement a decision by the people, surely that puts in much better order than all those times neither people nor Parliament were asked to decide on changes of their laws thanks to Brussels.
In sum, the Commons agrees to an Article 50 letter, so let’s get on with it. I just hope the Supreme Court has wiser views than the High Court of England.