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Mr Maloney, to answer your points—

(1) Laws can generally create both rights and obligations. The ECA 1972 and the laws that stem from it (both made within the UK by Parliament and/or statutory instrument or made within the structures of the EU) did both. Examples: free movement of British people within the EU – a right; requirement to express most measures in metric units – an obligation. To refer to such arrangements as subjugation is merely pejorative. Under UK constitutional principles, Parliament was and remains supreme. In the 1972 Act and what followed, Parliament effectively delegated legislative powers elsewhere. It does this routinely in domestic legislation by empowering ministers to make rules, regulations, etc. As the supreme legislative body in the UK, it retains the power to bring any particular delegation of powers to an end. This is what the UK people, voting in the referendum, have now called upon Parliament to do in relation to the powers it has delegated to the institutions of the EU. Given the extent to which those delegated powers have been exercised, the process of unravelling this will prove complex and time consuming. But it seems that MPs have generally heeded the message and are gearing themselves up to do something about it. It is simply that, as decided by the court, it is for Parliament to do what is necessary, not merely the executive. Difficult to see why this should not be the case in a parliamentary democracy.

(2) For law to be law in the UK, it doesn’t have to be Parliament itself that makes it, provided Parliament has conferred the necessary powers to make the law in question on someone else. Ministers make statutory instruments, councils make by-laws, the Church of England General Synod makes Measures and EU institutions make Directives. These different laws all have their force within the UK because the powers to make them have ultimately been conferred by Parliament. Parliament always has the choice, at any time, to bring those subordinate law-making powers to an end. But until it does so, through the legislative process, those powers remain exercisable.

(3) In none of the cases mentioned in (2) has Parliament ‘surrendered its supremacy’. Delegation is different from surrender in that (amongst other things) it can be undone. This is certainly the case with EU law in that no-one is suggesting that the UK Parliament has no power to withdraw from the EU. All the decision of the court was about is how the UK should go about withdrawing.

(4) As I have noted on a previous thread about this case, the referendum could not have been more binding in law than it was, i.e. because it provided for only a Yes/No answer to a general question (without any indication as to the detailed changes to the law that might be required) it was and could only ever have been advisory in nature. It is plain that the exit of the UK from the EU requires the enactment of primary legislation (even if only to repeal the ECA 1972) and that is something only Parliament can do. The outcome of the referendum shows only that a majority of those voting want the UK to leave the EU. Nevertheless, it is an expression of the wishes of the people and that has, quite understandably, had a massive political (rather than legal) effect in that it has impressed itself upon the minds of our politicians who (being democrats for the most part) have generally announced that they accept ‘the will of the people’ on the primary issue.

The court decision yesterday takes us on to the next stage, which is, given the referendum majority in favour of leaving the EU, how is the change to be achieved? All their lordships have done is pronounce on the question of who is entitled to activate the article 50 procedure on behalf of the UK – the Executive in the name of the Crown under the royal prerogative or Parliament, as the sovereign legislative body. For cogent reasons given in the judgment the court has found, in line with well-established precedent, that it is only Parliament that can do this. I fail to see how, in a parliamentary democracy, it can be described as ‘perverse’ and ‘dangerous’ for the court to uphold the supremacy of the Parliament, the democratically elected body that is there to safeguard the rights of the people, against the exercise by the Crown of a presumed law-making power that has not existed since at least 1688. The English Civil War was fought to establish that principle.