Three senior Tory backbenchers, all Remainers, but supported by a prominent Tory Leaver, have urged May to drop her appeal to the Supreme Court and get on with pushing a bill through parliament to activate Article 50. They fear she will lose and thus waste time and a good deal of public money. Downing Street spokespeople, who nowadays sound like a backstreet PR department of a dodgy goods company under siege, insist she has a strong case and will win. I am not a lawyer but I have read the judgment of the High Court and I have an interest in and comment on our constitution or lack of it. The four grandees also think that if the nations are separately represented, as they now intend, it is not impossible that the Supreme Court might rule that they in effect have a veto, in the case of Scotland and Northern Ireland, who voted to Remain. That would be a loss to May of custard pie in the face proportions.
Unless there is a technicality in the way in which the 1972 Act was drafted which has been missed, or in which the Referendum Act was drafted so that it somehow overrides the 1972 Act, she cannot win. Yet on refection there is perhaps a way of winning, which might constitutionally be far worse than losing. It is this. When stripped down to the bare bones, our constitution is an Absolute Monarchy.
The Queen owns everything including the land we hold free and in perpetuity, and all public bodies have a title which starts with Her Majesty’s, including both the Government and the Opposition. It could therefore be that when such nostrums as the Crown in Parliament are added, it begins to look as if the Sovereign Power remains with the Queen, but it is ceded to parliament which can then pass laws which the Queen must sign to make lawful, because the power remains hers. By that reasoning it could be argued that if the Queen should decide, in the persona of her prime minister, to withdraw that concession, bypass parliament and act directly on a mandate given by her people, she can do so.
Winning by that style of judgment would sort out Article 50, but would make clear to the country, the world and not least to an enraged parliament, that GB is not what it proclaims on the tin; a parliamentary democracy. Such is the hate of the people for politicians and all their works in most parts of the UK (but not in Scotland) that, while parliament will be in a tumult of protest, the people might breathe a sigh of relief.