On 3 November the High Court of Justice delivered its verdict on the sole question it was asked, being whether the crown, acting through the government is entitled to use its prerogative powers to trigger Article 50. Subsequently the judgement given has caused hysteria in the popular press, which has whipped up unenlightened comment by their followers. It is the propagation of this sort of misinformation, which currently constitutes the greatest threat to democracy at present, and not a ruling on a point of constitutional law by very senior members of the judiciary

A major plank of the leave campaign was predicated on ‘taking back control’ and ‘making the British parliament sovereign again’. The judgement does just this, it is not a legal ruling about whether or not we leave the European Union. All parties are in broad agreement that the will of the people needs to be respected. The ruling was not about whether article 50 should be triggered rather it clarified who should pull the trigger.

The case however is still vital, and it would be very dangerous for democracy if attempts were made to overturn it. The royal prerogative is a historical hand-me-down from the monarchy to the prime minister of the day. The principle underpinning it remains the same as King John tried to assert 700 years ago a sentiment which helped lead to a civil war. Essentially, ‘The sovereign is supreme and does not need to listen to parliament’. Lord Reid in a 1965 ruling stated that ‘…the prerogative is a relic of a past age…only available for a case not covered by statute…this subordination of the crown to law is the foundation of the rule of law’.

It is a tenet of parliamentary sovereignty that under the law of constitution, the right to make or unmake any law whatever is parliament’s and that no person or body is recognised by law as having the right to override or set aside the legislation of parliament.

In more recent times, by the European Communities Act 1972 parliament surrendered part of its sovereignty and allowed certain elements of EU law to take precedence over UK law. Importantly, some key rights and laws were by thus act made directly applicable domestically. While acknowledging that the making and unmaking of treaties on behalf of the UK are matters for the crown in the exercise of its prerogative powers, it remains the case that only parliament can affect national laws. What needs to be made clear is to what extent triggering Article 50 impacts on domestic legislation, and the rights of UK citizens.

The judgement states that where background constitutional principles are strong, there is a presumption that parliament intends to legislate with them and not to undermine them. The judges ruled that the crown has no prerogative power to effect a withdrawal from the treaties on whose continued existence the EU law rights introduced into domestic law depend. This ensures that the prime minister cannot decide to take away the rights of British citizens without parliamentary approval. This decision therefore asserts parliamentary sovereignty over the arbitrary power of the royal prerogative. To overturn the ruling would therefore set a very dangerous anti-democratic precedent whereby a future PM could take more and more liberties to amend or remove laws which they alone have interpreted as the ‘will of the people’ by virtue of a mandate at the ballot box, based on a manifesto which may or may not have been based on those issues.