Why Brexit legal challenge could be more damaging than referendum row

It would be even more ironic if the Government ends up fighting the case in the European Court and loses, writes Nigel Hastilow.

It could turn the whole Brexit referendum result on its head. Originally, Parliament gave the people a decision to make over whether or not Britain should stay in the European Union.

We made that decision, clearly, decisively and unequivocally. And yet, according to the High Court, we, the people, do not have the sovereignty, Parliament does. Therefore, by that logic, our elected representatives have the right to overturn the democratic decision of their electors.

And the legions of 'remoaners' who are aghast at the prospect that we might withdraw completely from the European superstate think they have been thrown a lifeline.

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If the decision stands, after the legal process is exhausted, Theresa May will not be able to trigger Article 50, which begins Britain's exit process, unless Parliament agrees.

And it is quite possible Parliament will not agree. The Scottish Nationalists will vote to remain, so will the vast majority of Labour MPs as well as the few Liberal Democrats who are still in the Commons.

So the decision will rest in the hands of Conservative MPs. As the Tories have been split over membership of the EU all along, there is a good chance enough would vote against triggering Article 50 to defeat the Government. After all, Mrs May only has a majority of 15.

And a Commons vote is only half the battle. We have two Houses of Parliament and the unelected Lords is almost certainly more Europhile than the Commons.

So we could end up with unelected Peers overturning the democratic vote of the people because unelected European Court judges have asserted the sovereignty of the British Parliament.

This is so hideously convoluted it could result in an even more damaging constitutional crisis than an argument over Brexit. The issue is simple – which is ultimately sovereign in Britain, Parliament or the people?

In a representative democracy, where we elect politicians to take our decisions for us, it is reasonable to argue they have the ultimate power. The referendum result is not binding on Parliament and only could be if Parliament said it would be in the first place. And it didn't.

The Remainers will argue that, after all the campaigning, voting, backstabbing and financial crises, the result of the referendum was nothing but a glorified opinion poll. This all leaves those of us who have long argued that leaving the EU was vital to assert the sovereignty of our own elected Parliament with something of a dilemma.

We elect politicians because, however fallible they certainly are, they are free to debate the pros and cons of an issue and make an independent decision while the rest of us get on with our lives.

Sometimes – often, really – they make decisions we disagree with profoundly. Luckily we can throw them out every five years or so and replace them if we want to with another lot who might not be quite as unresponsive to our views.

That is why, for instance, we do not have capital punishment in this country. All the polls suggest that in a referendum a majority of us would vote to bring back hanging (or maybe something more humane like the guillotine, if we were feeling particularly pro-European at the time, perhaps).

But that has never happened because virtually all our MPs, for the past 50 years, have been against it. That is an assertion of Parliamentary sovereignty, it's how our democracy works. So I find myself thinking that it is probably fair enough for Parliament to have a final vote on whether we should leave the European Union. After all, that's what Parliamentary sovereignty is all about.

The trouble is there is a strong chance our elected representatives will go against the will of the people. And there is an even greater possibility our unelected Parliamentarians will do so. That is an argument for the reform of the House of Lords but it is not an argument against the assertion of Parliamentary sovereignty.

Despite my fear Parliament will overturn the will of the people, I think the court decision is fair enough. Mrs May should give Parliament the right to trigger Article 50.

But she knows she could be plunged back to square one. What happens if Parliament rejects the result of the referendum? It would delight London and Scotland but dismay the rest of the nation.

The courts are offering us chaos, confusion and constitutional crisis. But if Parliament does assert its sovereignty and reject Brexit, we the voters could ultimately assert our greater sovereignty and kick the whole lot out at the next election. That, in the end, is a referendum even the most Europhile MP has to respect.