The 40 or so pages of the High Court’s ruling can be summed up in three sentences:
The 1972 Act joined us up to the EEC;
Article 50 invokes an irreversible process that leads automatically to our leaving the EU;
Therefore, if ministers – using the prerogative power of the Crown – initiate article 50, the result will reverse the provision of the 1972 Act, offending the constitutional principle that prerogative power cannot reverse an act of Parliament.
They key issue as to how we now proceed to deliver the referendum result, depends on the remedy to the High Court judgement. There are three possibilities.
First, the Government wins its appeal in the Supreme Court and carries on to negotiate the terms of our exit.
Second, it loses, but it is judged that a resolution of both Houses is sufficient to authorise the Government to invoke article 50. I am confident that this could be delivered quickly – although it could be messy in the Lords. Voting against such a resolution would require an MP or peer to explicitly oppose the referendum result, which is a tall order and I estimate that few would be so foolhardy.
Third, it is judged that such a resolution is insufficient, and that a full act of Parliament is required. This does really get us into dangerous territory. Opponents could cover themselves by supporting the bill at second reading, but then delay and derail the process by seeking to amend the bill during prolonged committee and report stages, by trying to tie the Government down to a specific negotiating strategy. Nick Clegg has already announced that the Liberal Democrat peers will do exactly that.
In such a scenario the obvious way out would be to dissolve Parliament and settle the contest in an election. Press speculation already suggests that this is what the PM will do. As I have pointed out in this column previously however, calling an election is no longer in the PM’s gift http://www.desmondswaynemp.com/ds-blog/begging-for-an-election/
and would involve jumping through a complex set of hoops.
Clearly, the best way out is for the Government to win its appeal. Whatever happens, it’s not going to be dull.