DOMINIC LAWSON: The law really is an ass if it allows Brexit to be betrayed

• e-mail

The High Court ruling came as a shock to Theresa May, pictured on Sunday

Perhaps you weren't watching the TV news at 7.30am on June 24, the morning when those who had slept through the previous night's events awoke to realise we had voted to leave the European Union.

If you were, however, you will have seen the Labour Party leader Jeremy Corbyn on Westminster's College Green declaring that Article 50 of the European Treaties — the approved means by which an EU member state initiates negotiations to depart — should be invoked without delay: 'The British people have made their decision. We must respect that result and Article 50 has to be invoked now.'

The idea of immediate action to invoke Article 50 — without waiting for the passage of parliamentary approval — had also been the line taken by the leader of the Remain campaign, one David Cameron.

Throughout, the then prime minister had said that if the voters chose Leave, he would 'trigger Article 50 straight away'. No one, at the time, argued that Corbyn and Cameron were suggesting something unconstitutional.

So what has changed? Well, first of all, David Cameron instantly broke his word and quit, leaving the issue of handling our EU departure to his successor.

And, yesterday, Jeremy Corbyn told the Sunday Mirror that he would only let Prime Minister Theresa May trigger Article 50 if she agreed to what he called 'Labour's Brexit bottom line'. These demands included 'no watering down of EU workplace rights' and 'guarantees on safeguarding consumers and the environment'. 

In other words, the Leader of Her Majesty's Opposition was saying he would try to block the Government's attempt to negotiate EU exit, unless it was done on his terms.

The High Court issued a strikingly clear judgment in support of a legal action brought against the Government by a former model and now investment manager, Gina Miller, pictured

Given Corbyn's appalling relationship with his own parliamentary party, his grandiose statement is laughable. Labour MPs will do as they wish. But during the referendum campaign only a handful of them were for Leave. And some of that great majority of the PLP on the losing side have still not accepted the result.

The man who recently challenged Corbyn for the Labour leadership, Owen Smith, told the BBC's Andrew Neil last week that he would continue to press in Parliament for a second referendum in an effort to negate the result of the one on June 23.

And Paul Flynn, until last month Labour's Shadow Leader of the House of Commons, wrote in the latest issue of the New Statesman magazine: 'The Brexit vote deserves the same respect as the vote which chose to name a state-of-the-art ship Boaty McBoatface.'

He went on to argue that MPs 'are under no obligation' to obey the referendum decision, which he dismissed as 'a snapshot of public opinion one day in June'.

Until last Thursday, it was possible to regard such voices as ones in the wilderness: Mrs May had declared her timetable for Brexit, which included invoking Article 50 by next March.

But that day, those who wanted to obstruct and delay the referendum verdict were given a tremendous boost: the High Court issued a strikingly clear judgment in support of a legal action brought against the Government by a former model and now investment manager, Gina Miller (who said the Brexit vote made her 'physically sick').

The three judges accepted the arguments of Ms Miller's lawyers that negotiations to leave the EU could not even be started without the prior approval of MPs — such as Owen Smith and Paul Flynn.

This clearly came as a shock to Downing Street, which, after a moment or two to absorb the blow, declared it would appeal the case to the Supreme Court.

Yesterday, Theresa May reinforced that message: 'The referendum result was clear. It was legitimate. MPs and peers who regret the referendum result need to accept what the people decided.'

When the Supreme Court hears the appeal in a month's time, the Government team will need to do a better job of advocacy than they did in front of the High Court. Ms Miller had employed Lord (David) Pannick, regarded as one of the legal profession's most brilliant advocates in the field of public law. To put it politely, no one would say the same of the Attorney General, 44-year-old Jeremy Wright.

I am sure those High Court judges were acting conscientiously and in accordance with what they believed to be the dictates of the law when they sided with Pannick's arguments, rather than those of the much less impressive Government team.

But that does not mean their judgment can't be questioned. And, indeed, I have received comments from a number of constitutional lawyers saying exactly that. 

First, it's necessary to understand the reason the High Court gave for blocking Mrs May's wish to invoke Article 50 with 'the royal prerogative' — executive action under authority vested in the Crown, as opposed to a vote by MPs.

The judges argued that when Parliament voted in 1972 to join what was then the European Communities, it gave the British people certain 'rights' and that such 'rights' could not be removed from us without Parliament agreeing to reverse its original (44-year-old) decision.

The judges also ruled that the invocation of Article 50 would lead 'inevitably' to that loss of 'rights', since it set in train an irrevocable process towards EU exit.

In fact, this last point is highly contentious. Remarkably, the day that the High Court made its judgment, Lord Kerr, the man who actually devised Article 50, told the BBC that invoking it would not make Britain's exit from the EU 'irrevocable'. He said: 'You can change your mind while the process is going on.'

That view was endorsed by Jean-Claude Piris, the former chief of the EU's legal service.

Not only does this show that matters are much less clear than the High Court suggests, but there is, instead, an obvious moment at which our so-called 'loss of EU rights' would be irrevocable. That is when Mrs May brings before MPs her already announced EU 'Great Repeal Act'. And, of course, Parliament will have a decisive vote on that: the clue is in the name.

In yesterday's Mail on Sunday, the former Lord Chancellor, Lord Falconer, defended the High Court's ruling, saying it was simply following the centuries-old constitutional dictum: 'Judges know nothing of the will of the people save to the extent it is expressed through Acts of Parliament.'

But this is like saying that the referendum vote is irrelevant to the matter under discussion. To quote Charles Dickens' Mr Bumble: 'If the law supposes that — the law is an ass.'

For when those High Court judges spoke of the loss of the British people's 'rights', it was as if 17.4 million of us had never voted, of our own free will, to relinquish our 'right' to be a citizen of the EU.

Sure, 16.1 million Britons said that they wished to retain the rights (and obligations) of EU membership. But it was always accepted that whichever side won would have the issue settled definitively in its favour. 

Nick Clegg, pictured yesterday, the former deputy prime minister, who made it clear he will use the High Court ruling to tie the Prime Minister's hands in her Brexit negotiation

Most importantly, that was accepted by Parliament itself. In 2015, by a six to one majority, it passed the Referendum Bill.

And the measure's proposer, the then Foreign Secretary Philip Hammond (a Remain campaigner), declared: 'The decision about our membership should be taken by the British people, not by parliamentarians in this chamber.'

Later, the Government leaflet backing Remain, distributed to every household across the land at a cost of £9.3 million, declared: 'This is your decision. The Government will implement what you decide.'

As the eminent QC Martin Howe argues: 'It is therefore clear that the referendum was not merely advisory, as the High Court judgment suggests, but was constitutionally decisive and binding.'

Of course, this means nothing to those members of Continuity Remain — such as Nick Clegg, the former deputy prime minister, who made it clear he will use the High Court ruling (and the Liberal Democrats' 104 unelected representatives in the House of Lords) to tie the Prime Minister's hands in her Brexit negotiations.

Not many like-minded MPs will admit it, but their real objective is to stop Brexit altogether. That was encapsulated by the headline on the Guardian's front page commentary by Polly Toynbee rejoicing at the High Court verdict: 'The court's ruling is a chance for MPs to put the national interest first and halt Brexit.'

The truth, inevitably, is the opposite. It is in the national interest for the referendum result to be honoured: anything else would be the greatest betrayal in the history of our democracy — one with unimaginable consequences.