The decision of the Court, and the case itself, in Miller v Secretary of State, seems pointless and futile. It may be hailed as a great victory: but it is nothing of the sort. The Brexit process can, and will, continue uninterrupted.
All that the Court has decided is that the Government cannot trigger art. 50 by the use of the Royal Prerogative, and no more. It would need to have the approval of Parliament, by statute or other means, before it could validly give notice under the article. But it would have needed that anyway before this decision: because the progress of the Brexit negotiations would be repeatedly discussed in the House of Commons, as it already has been. That will continue. It would be unthinkable that the Government would utilise the Royal Prerogative without the approval of Parliament – which, of course, is sovereign. As the terms of any Brexit settlement become clearer, so Parliament will be able to judge whether it can approve them or not. These are all political issues: either the Government can get sufficient support for what it wants to do, or a sufficiency of MPs may block it. It has always been open to the Remainers to bring the Brexit issues to Parliament, and seek to overturn the Referendum vote.
The Government can, therefore, and should continue with its negotiations, always keeping Parliament, so far as may be reasonable, informed of their direction, to achieve the operation of art. 50 by March 2017. In the event of obstruction and criticism in Parliament, the Government will have to deal with that as and when it arises. Unless there is convincing political support for any change in the Government’s policy towards Brexit, there is no reason to suppose that the Prime Minister will not get the outcome she is seeking. The majority will of 17.4m people would seem to be politically very persuasive.
In the end all that the Miller Case really determined is a matter of procedure: the Royal Prerogative cannot, on its own, be utilised to proceed with Brexit. But there are other constitutional means available to Parliament to enable Brexit to happen in accordance with Government policy.
Whichever way the appeal turns out, our sovereign Parliament will decide on the fate of Brexit and its implementation – not the Courts.
Stanley Brodie QC is the most senior barrister practising from Blackstone Chambers.
Click here for further analysis of the Miller case.