On 03 November 2016, Lord Chief Justice, Lord Thomas of Cwmgiedd, declared:
"The Government does not have the power under the Crown's prerogative to give notice pursuant to Article 50 (of the Lisbon Treaty) for the UK to withdraw from the European Union", adding: The court is not concerned with and does not express any view about the merits of leaving the European Union (EU): that is a political issue."
Although Theresa May's Government will appeal the decision to the UK's Supreme Court in December, any other judgement would surely have set an awkward legal precedent, in that the EU Referendum and its outcome, and therefore any other future referendum, had judicial authority instead of being purely advisory. To make it otherwise would challenge and possibly trump the sovereignty of Parliament.
When one considers that although the vote to leave the EU in June 2016's Referendum was 52 per cent against 48 per cent to remain, only 72 per cent of the electorate voted, so that really just 37 per cent of the electorate voted for Britain to leave the EU.
Not surprisingly, this was picked up very shortly after the result North of the Border and especially once it was perceived that Westminster was making a headlong dash for the exit, excuse the pun, with very little in the way of a plan or the type of future relationship the UK envisaged with the EU 27.
It was remembered that the Referendum for a Scottish Assembly in 1979 under the Scotland Act of 1978, resulted in 51.6 per cent voting for to 48.4 against, but this did not reach the 40 per cent of the total electorate (in Scotland) voting in favour, it was 33 per cent, and therefore the Assembly did not go ahead.
Why such a clause was inserted into the Scottish Bill but not the British one gives the Scottish National Party justification for their belief that there's one law for the goose and another for the gander.
If the EU Referendum result had thrown up a truly decisive outcome indicating a much greater mandate, even counting just those who had voted, and say, using the conventional basis of a "landslide" 60:40, then there might have been grounds for bypassing Parliament in the manner the Prime Minister and her Cabinet have chosen.
Even then, the nature of the Referendum was not conducted under the much stricter and more rigorous systems of a country like Switzerland where referendums form a part of the parliamentary procedure. Only with Switzerland's cautious, methodical approach and where the electorate are expected to take and make a studied appraisal of all aspects and possible outcomes of any referendum, should there be any thought of referendum results becoming the law of the land and determining the course that a country should follow.
Irksome to the Government as it must be, they should not use the Crown's prerogative in the manner they have done and should present to Parliament their proposals for leaving the EU and their expected consequences.