A glaring failure by the High Court was the absence of consideration of the characteristics and existence of an Article 50 "decision"

One of the glaring deficiencies of the High Court judgement on the Brexit case was the absence of detailed examination of whether a "decision" in the meaning of Article 50 of the Treaty on European Union had been made or not.

The High Court also failed to make more than a cursory examination of who may lawfully make an Article 50 "decision".

The Secretary of State's written case hinted at the Referendum of 23rd June 2016 as being the "decision".

That indication by the Secretary of State seems to me to be visibly ridiculous.

On reflection it seems that the Secretary of State recognised that attributing the Article 50 "decision" to the Referendum couldn't be sustained.

More recently the Secretary of State has hinted that the Government made the decision.

Or maybe it was the Secretary of State.

Or maybe no "decision" has been made at all.

It seems to me that where the High Court failed to go the Supreme Court must go with energy and thoroughness.

The existence or otherwise of an Article 50 "decision" is fundamental to the question of whether or not an Article 50 "notification" may lawfully be sent.

Similarly the question of who may take such a "decision" in compliance with the United Kingdom's "constitutional requirements" is key to whether or not it is lawful for an Article 50 "notification" to be sent.

The Secretary of State's view seems to be that making an Article 50 "decision" is a matter of a few moments and that it may be made by virtue of the Royal Prerogative.

In my document entitled "Preliminary  Skeleton Arguments of Prospective Intervener Dr. Andrew Watt" sent as part of my formal application to the Supreme Court to intervene in the Brexit Appeal I set out a line of legal argument that an Article 50 "decision" was multipartite.

In particular, I showed that an Article 50 "decision" was at a minimum tripartite.

The three parties involved are:

1. HM Government
2. Parliament, through at least one Act of Parliament
3. The British electorate, through at least one further Referendum

At present my application to intervene has not been decided by the Supreme Court.

At least I haven't been informed of any decision by the Supreme Court.

Nor is there any indication on the Supreme Court web site of any decision on my application to intervene.

I believed when I submitted the application to intervene that my line of legal argument wouldn't appear in the written cases of other parties and interveners.

And such has proved to be the case apart from a passing reference to one part of my argument in the written case for the Expat Interveners.

It is therefore a line of legal argument which, it seems to me, the Supreme Court must consider if it is fairly to consider this case of huge constitutional importance.

Of course, if the Supreme Court considers my line of argument and indicates in its judgement that they reject the argument for stated reasons that is transparent and may be entirely legitimate.

If, on the other hand, the Supreme Court rejects the application to intervene that eventuality, if it happens, would potentially be a very worrying development.

Of course, the Supreme Court Justices who have looked at my application to intervene may think my line of reasoning is so ridiculous as to be certain to fail.

If so it seems to me that it would be prudent for the Supreme Court to say so transparently.

I would rather be publicly embarrassed than be left with the feeling that the Supreme Court isn't acting with full transparency and integrity.

As far back as 1971 the High Court in Blackburn vs Attorney General allowed Mr. Blackburn to argue a hopeless case.

The Court of Appeal did likewise.

Even if the Supreme Court were to consider by Preliminary Skeleton Arguments as being a hopeless case the preferable way to say so would be to do it publicly in its judgement.