What do dangerous dogs, an impounded boat, and the Loch Ness Monster have in common? They all made an appearance in the oral arguments before the UK Supreme Court this week as, for the first time ever, all eleven justices sat together as they heard the appeal against the High Court judgement in R (on the application of Gina Miller & Dos Santos) v Secretary of State for Exiting the European Union.
The case turns on whether the UK Government (the executive), requires the approval of Parliament (the legislature), to give notification to the EU of Britain’s intention to exit by triggering article 50 of the Treaty of Lisbon.
This fundamental question, in turn, involves historic principles of constitutional law that rarely get an airing: for starters, the limits of royal prerogative power, first subjected to any sort of boundaries by the Bill of Rights in 1689.
In the first instance case earlier in the Autumn, the High Court ruled unanimously that the Government did require prior approval of Parliament. The Government appealed against this ruling and the case leapfrogged the Court of Appeal to the UK Supreme Court. The justices have a tough task ahead of them and, perhaps understandably, have given themselves the Christmas break to consider their judgment.
The constitutional conundrum
The crux of the appeal has been summarised nicely by Adam Wagner, a public law barrister at One Crown Office Row. Wagner suggests it boils down to the Government arguing Parliament would have made it explicit in statute if it ‘wanted a say’ in the notification process.
The claimants in the case argue Parliament doesn’t need to do this as it has that say anyway.
‘‘The Brexit referendum […] has left behind it a cloud of uncertainty at a time when Europe needed more certainty and confidence about its future, not less
Patricia Gannon, Senior Partner, Karanovic & Nikolic and Co-Chair of the IBA’s European Regional Forum
An important aspect of the dispute is whether the European Communities Act 1972 grants domestic rights to British nationals or is merely a ‘conduit’ for those domestic rights deriving from European laws.
If it does grant domestic rights, an Article 50 notice would serve to deny those rights, and no executive can do this without parliamentary approval. This is the position adopted by the claimants, represented by Lord Pannick QC: the European Communities Act has ‘constitutional status’ and is the real source of domestic rights in the UK. The Government argued that it is a merely a conduit.
The Attorney-General, Jeremy Wright QC, argued on behalf of the Government that, while Parliament is indeed sovereign, it ‘can, if it chooses, limit the prerogative and it has done so. But where it has done so, it has done it sparingly and explicitly’.
Parliament did not mention any limit to ministerial powers in the European Communities Act nor in any subsequent legislation and so did not intend to limit the prerogative. The claimants argued that it is the other way round: Parliament must actively confer the prerogative.
The Miller case has been emotive from the outset. The High Court justices who had decided it at first instance received intense and unprecedented criticism in certain quarters of the media after finding against the UK Government. One newspaper labelled them ‘Enemies of the People’, referencing the label given to so-called traitors to the Communist regime by Stalin during his purges.
As a result of that criticism, Lord Neuberger, President of the Supreme Court, made a pre-emptive strike against assertions that any of the eleven Supreme Court justices may be similarly branded. At the outset, he publicly explained that the Court had ‘asked all the parties involved in these proceedings whether they wish to ask any of the justices to stand down. All parties to the appeal have stated that they have no objection to any of us sitting on this appeal.’
Another notable feature of the hearing was that it was broadcast live by the Supreme Court on the internet, something which not even the US’s top court does yet, and sets a high bar for ‘open justice’. The very public nature of the hearing should, the Court must hope, demonstrate the rigour and impartiality with which the issues were dealt.
The wider maelstrom caused by the UK’s Brexit referendum hangs over these proceedings. The hearing came in the same week that Italy held a referendum on legislative procedural reform; another EU prime minister was defeated and forced to resign.
The future within the European Union feels very uncertain, says the IBA’s European Regional Forum Co-Chair, Patricia Gannon, Senior Partner at Serbian law firm, Karanovic & Nikolic: ‘Clearly recent referenda have had an impact on the overall political climate in Europe but none more so than the Brexit referendum which has left behind it a cloud of uncertainty at a time when Europe needed more certainty and confidence about its future, not less.’
The task in front of the 11 Supreme Court justices has been further complicated by the fact that on day three of the four-day hearing, UK MPs voted in Parliament on the Government’s proposed notification timetable – voting in favour, 461 to 89. Could this amount to the necessary parliamentary ‘approval’ of notification itself?
There is considerable lack of clarity and speculation as to the relevance of the vote to the Court’s decision. James Eadie QC, senior counsel for the Government, argued at the eleventh hour that it was, calling it ‘highly significant’. ‘No doubt it is not legally binding,’ he said ‘but that doesn't mean it is not legally relevant … the House of Commons at least has given specific approval to the Government to give that notice and indeed it has called on them to do so by a particular date.’
Polly Botsford is a freelance journalist and can be contacted at email@example.com