The British government said Monday it would appeal this week against a High Court ruling that the Prime Minister cannot start the process of leaving the EU without parliament’s approval.
Let’s hope this time, the appeal is based on a recognition that a court is there to judge whether the government has upheld the constitutional arrangements of the UK or not.
The government has to demonstrate that it has upheld the constitution and show that parliament has been sovereign. It did vote by an overwhelming majority to delegate the decision to the British people, and it did specify that in the event of a yes vote, the government would have to trigger Article 50.
To argue that the government has the right to trigger a Brexit on the basis of the “will of the people”, as government lawyers apparently did at the High Court, might be good for a party speech or the media.
But this argument will fail in a court of law examining whether the constitutional process has been followed or not. The UK is a parliamentary democracy and not a popular democracy. The constitution does not allow governments to act on the basis of the “will of the people.” The government must demonstrate the process of triggering Article 50 has satisfied the conditions set by the constitution and that parliament has been sovereign throughout.