The high court bench has retired now to consider its judgment in the case of whether parliament has a say in triggering article 50. If not, the government can take the UK out of the European Union without a parliamentary vote.
Andrew Blick makes the very good point that if the government has the constitutional power to do this, it has the constitutional power even without a referendum. A non-binding referendum surely can’t limit the power of the government if parliament cannot.
What an amazing outcome that would be. The government has the power to make fundamental and irreversible changes to our country, its economy, its citizens and its democracy by simple prime ministerial decision. The notion of an elective dictatorship would be back with a bang.
A lot of the argument in the case seems to rest on what parliament intended. Specifically the case for the government, which supposes that the Royal Prerogative is what is meant by the UK’s “constitutional arrangements”, argues that parliament has agreed this very arrangement. Had it wanted something different, it could have inserted such provisions into the act that created the referendum in the first place.
But that argument is entirely circular. What if parliament already believed that the “constitutional arrangements” already required a parliamentary vote? There would be no need to restate something that was already clear. Parliament’s silence on the Royal Prerogative cannot necessarily be taken as agreement to its use.
One of the joys of this whole debate is the extent that it reveals the absurdities and ridiculousness of the British constitution. Let us hope that some good can come from this situation and that Britain can become more democratic as a result. But if the main outcome is that the executive gets stronger and the legislature weaker – as would be implied by the government winning this case – then modern democracy seems a very long way off.