We have a situation where the UK Parliament made itself and the realm, subservient to a foreign power via the ECA 1972 and then in 2016 a majority of the population voted to reverse this subservience. Some of those who campaigned to retain the aforementioned subservience suddenly developed a concern for Parliamentary Sovereignty, i.e. supremacy1.
The ‘Supreme Court’s’ Judgment was predictable and I accept, orthodox, if one accepts the notion of Parliamentary Sovereignty that prevails within the judiciary and the legal profession. This notion would allow Parliament to reverse all law that has existed since time immemorial and plunge the realm into a Hobbesian state of nature.
I do not however accept this notion. Edmund Burke had a far superior understanding of our constitution than those who contend that Parliament can subjugate itself and the realm to a foreign power. The fact that the ECA 1972, which created this subjugation can be repealed would not have satisfied Burke who saw the constitution in an organic and practical sense. I quote him at length below.
“The House of Lords for instance, is not morally competent to dissolve the House of Commons; no, nor even to dissolve itself, nor to abdicate if it would, its portion in the legislature of the Kingdom. Though a King may abdicate for his own person, he cannot abdicate for the monarchy. By as strong, or by stronger reason, the House of Commons cannot renounce its share of authority. The engagement and pact of society, which generally goes by the name of the constitution, forbids such invasion and such surrender. The constituent parts of a state are obliged to hold their public faith with each other and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with separate communities. Otherwise competence and power would soon be confounded and nothing would be left but the will of a prevailing force.”2
1 As an aside, some commentators have labelled the judgment as a victory for democracy. The etymology of ‘democracy’ is from the Greek, power to the people. We now have a scenario where the Liberal Democrats and SNP who have a vastly disproportionate share of MPS compared to their popularity, will have the chance to prevent Brexit.
2 E. Burke ‘Reflections on the French Revolution’ 1790 – Archeron Press p20