Brexit: Those judges aren't 'enemies of the people', they are upholding British law

In June a referendum was held to allow the country to express its preference as to whether to stay as part of the EU or to leave it. As was acknowledged by all sides, the referendum had no legal effect whatsoever, although it was an enormously important indication as to what the country wanted its elected representatives to do about Britain's membership of the EU.

It is a basic principle of our constitution, and one that is in place for the protection of all of us, that the Government must operate according to the law as made by Parliament. In the case of the triggering of the process whereby Britain leaves the EU, the Government said it had the power to do this unilaterally without the approval of Parliament. Another element of the constitutional framework, the High Court, was asked to determine whether this view was correct and gave its judgment yesterday.

The legitimacy of the legal process was acknowledged by the Government . These are the first two paragraphs of the summary of the judgement of the Divisional Court (about which The Daily Mail has complained so vociferously); "The issue before the Court is whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the EU European Union under Article 50 by exercise of the Crown's prerogative powers and without reference to Parliament...

"It is accepted by all sides that this legal question is properly before the Court and justiciable: under the UK constitution, it is for the Court to decide. It turns on the extent of the Crown's powers under its prerogative."

Nothing in the court's judgment took sides as to whether the UK should leave the EU or not (that was made express). In the court's summary, the relevant constitutional principles were set out clearly and concisely: "The most fundamental rule of the UK's constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament.. the Government cannot by exercise of prerogative powers override legislation enacted by Parliament."

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The Government accepted that if notice was given under Article 50 it would inevitably have the effect of changing domestic law; i.e. it would not be purely a matter of overseas relations. The law in question is the European Communities Act 1972.

The Government contended that Parliament should understand when it enacted the Act that the Crown would retain its prerogative power to effect a withdrawal from the EU; the effect of this being inevitably that the domestic law of the UK would undergo change.

"It is a basic principle of our constitution, and one that is in place for the protection of all of us, that the Government must operate according to the law as made by Parliament"

The Court disagreed: "In the judgement of the Court, the argument is contrary both to the language used by Parliament in the 1972 and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers."

The effect was merely to reaffirm the sovereignty of Parliament when it comes to issues of domestic law to ensure that the Government does not override the will of Parliament using its prerogative powers. The suggestion that in so doing judges are "enemies of the people" and have "declared war on democracy" is the antithesis of the truth. It is published by a newspaper which insists on the right to self-regulation. It is articles like this which grossly mislead the country on constitutional issues (as The Sun did with its "Queen Backs Brexit" headline, which prove that Fleet Street should no longer be permitted to regulate itself.

Jonathan Coad is a specialist media lawyer and partner at Lewis Silkin LLP. Follow him on Twitter @jonathan_coad