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Brexit is life as a jigsaw puzzle in which the shapes of the pieces are constantly changing. Yet some aspects of it can be noted with reasonable confidence.
One is that Prime Minister May's government is appealing the decision. It is expected that the Supreme Court of the United Kingdom will hear that appeal in early December, though it may be January before a ruling is issued. The Supreme Court is, in fact, a relatively new institution, having been established in 2009 as a successor to the Law Lords, which had previously served as the UK's final judicial arbiters.
Second, Mrs. May has told her European colleagues that she expects the government will win its appeal. And
Third, she has also told them that it is still her intention to trigger Article 50 by the end of March. That will, of course, depend upon what the Supreme Court says, and not everyone is as confident as Mrs. May that their decision will favor the government.
What can be noted with even more confidence are the actual words of yesterday's decision. The headline for today's entry included a truncated version of the Latin aphorism "Fiat justitia, ruat caelum." - "Let justice be done though the heavens fall." In a sense, the justices of the High Court laid claim to the spirit of that thought when, early in their opinion, they wrote:
"[T]he court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union; nor does it have any bearing on government policy, because government policy is not law."
The argument that followed included these elements:
Only Parliament can make or unmake laws.
The notification by a Member State of its intention to withdraw from the European Union - Article 50 - is irrevocable and cannot be conditional.
Such notification by the UK would in effect mean a change in the laws currently applicable in the UK and so must itself be expressed through an act of Parliament.
That leads to the question, did Parliament implicitly grant the government of day the ability to trigger Article 50 by passing the European Union Referendum Act of 2015? Emphatically, the High Court justices said, no, it did not. They wrote:
"...a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum in question. No such language is used in the 2015 Referendum Act."
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The "remain" side of the Brexit debate is now celebrating a victory while those who voted to leave are feeling betrayed by the judiciary. Our impression of yesterday's ruling, however, is that it was a fair reading of the issue being adjudicated and stands a good chance of being upheld by the Supreme Court. Does that mean that the UK electorate has lost its bid to separate from the European Union? No, it does not, but it does mean that the referendum was only the first step. As the High Court put it:
"This court does not question the importance of the referendum as a political event, the significance of which will have to be assessed and taken into account elsewhere."
For our part, we think it would be a serious mistake to underestimate Prime Minister May's determination to give force to the referendum or her ability to overcome the disappointment of yesterday's ruling. After all, the basic message was that Parliament is supreme. And, for the moment, she is in charge there.
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