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The issue before the High Court was the narrow one of, given the result of the referendum, what are the “constitutional requirements” within the UK that need to be followed in order for the UK to invoke the exit procedure for which article 50 provides? This question has been brought before the High Court for determination in the recent case under discussion. All that has happened is that the court has found that it is Parliament that needs to invoke the procedure, not simply the Executive in purported exercise of the Royal Prerogative. This finding may or may not be reversed by the Supreme Court on appeal, but for the time being the decision stands. Why this is seen as somehow “plac[ing] back in parliament's hands the power to annul the referendum vote at its pleasure” is unclear. From numerous comments from our parliamentarians they appear to be asserting that they do indeed accept the referendum vote as the voice of the people telling them to implement the exit of the UK from the EU, so why they should now seek to “annul the referendum vote” is unclear.

Nevertheless, let us suppose that there is some plot within Parliament to pretend to want the Brexit baby whilst secretly doing their best to strangle it at birth, which seems to be the fear of those who want to leave. In that case there is, firstly, no shred of evidence that any of the judges in the case are somehow part of this secret plot (though no doubt the Daily Mail would disagree, without the bother of investigating the matter). And, secondly, if that really is Parliament’s secret design, there is nothing in law to prevent it tomorrow revealing its hand by passing a law that makes the judgment explicit under statute law by declaring that, for example, any notice under article 50 can be given only after a resolution by both Houses of Parliament approving this. As always, Parliament has an unfettered sovereign power to make such laws as it sees fit. So, if the fear is that there is mischief behind the confirmation that Parliament must be involved in the process, that fear is not dispelled by simply reversing the court’s judgment, it is dispelled only by Parliament doing what the generality of it members currently say they are going to do.

For keen Brexiters I would have thought that, in any case, it is better in the long run for Parliament to be kept on board the process from the beginning. I can see why getting the article 50 notice delivered by the PM without more ado might be superficially attractive. Get the process on track and then, hey presto, Parliament will be bound to go along with it like lambs to the slaughter. Yet is that really the case? There is a huge amount of detail to be sorted out, and the more this is carried out by the Executive without reference to Parliament, the greater the risk of problems arising when, as will be inevitable, the point comes for the necessary legislation to be passed by Parliament. As a country we are on a bus that has reached a point in the road where there are a multiplicity of different ways to go. Notice under article 50 only bars the way down the road marked “continued membership of the EU”. It does not force the bus down any other particular road, such as those marked “remain in the single market”, “stop EU citizens from coming into the country at all costs” or “lets see what deals are on offer from other countries before we finalise an exit deal with the EU”. It would be far better if those responsible for reading the map and planning the way forward could all agree about the way forward first, rather than have them fighting over the steering wheel as the bus careers down a road whose signpost nobody thought to read.

And, thinking about the High Court decision, isn’t it far better that we have clarity on the procedural issue before article 50 is invoked? If notice were to be given without that clarity, then the question of whether it was given in accordance with our constitutional requirements would seem to become an issue under EU law and therefore justiciable before the European Court of Justice (because any determination of that issue would affect other EU countries and not just the UK). I assume the last thing any Leaver would want is to have the validity of the UK’s article 50 notice determined by any institution of the EU. Far better to have the matter settled by the UK courts first (especially as I suspect the ECJ would wish to receive an opinion of the UK court before making any determination).