Why the Supreme Court should overturn the High Court…

November 10, 2016 OPINION/NEWS

AFP photo

 

By

Alan Share

 

… even though the High Court was right!

 

The Law needs to be predictable so people know where they stand. Judges see it as their remit to make it so. They worship precedent. They like the status quo. Their independence underpins it. That is why the High Court Judges decided the way that they did and they were right to do so.

Parliament makes the laws and repeals them. That is not the function of the courts. And all of that is the norm.

Then along comes the Referendum. Parliament temporarily passes its sovereignty in law-making to the people. The people take over and instruct the Executive to leave the EC.

The High Court can’t live with that. It flies in the face of tradition to acknowledge that. Parliament isn’t sovereign. The Supreme Court, on the other hand, can address this new situation. Just occasionally the Supreme Court can make new Law. It can redefine the ground rules to accommodate new realities.

That is why in the USA it is seen of pivotal importance whether new judicial appointments to their Supreme Court are conservative or progressive in their outlook.

Our hope must be that our Supreme Court realises that if they require the Government to introduce a new Bill to sanction triggering Article 50, the result might be to frustrate the clear wish of the public, making negotiating Brexit difficult or even impossible and introducing delay that would be highly damaging to investment, jobs, pay and pensions.

The imperative in these circumstances is for the Supreme Court to create a new legal concept, which it can do but which a lower court can’t. It can rule that Parliament, when it legislated the Referendum by necessary implication, temporarily ceded sovereignty to the people and empowered them to instruct the Executive to implement its wishes. This overrides both the UK Parliament and the Scottish Parliament.

This would not be a slap in the face for the High Court, simply an acknowledgement of their different roles in the scheme of things. Equity and Common sense require no less.

 

 

 

 

 

 

 

 

Alan Share

Alan Share

Alan Share is an Author and Social Media Activist to promote much needed Accountability, Fair Play and Excellence in the UK. His novel ‘Death of a Nightingale‘ can be purchased via CreateSpace or Amazon.

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