Article 50 UK Supreme Court case starts; Crown begins its submissions

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Alicia Nicholls

One of the most consequential and politically-sensitive constitutional law cases in United Kingdom legal history commenced on Monday before the Kingdom’s highest court. A panel comprising all eleven Supreme Court justices heard opening submissions from Attorney-General, Jeremy Wright QC and veteran government lawyer, James Eadie QC, on behalf of the Crown. Reiterating the arguments the Crown had made during the High Court case, both counsel for the Crown argued that the Government does not need to consult Parliament first in order to make its notification of withdrawal from the European Union (EU) under Article 50 of the Treaty of Lisbon as such power lies within the Crown’s prerogative powers – powers belonging to the sovereign (but mostly exercised by the executive branch) which may be exercised without requiring parliamentary consent.

Background

In a referendum held on June 23, 2016 the British people by a 51.9% to 48.1% majority voted in favour of the UK withdrawing from the EU. This led to the resignation of then Prime Minister, David Cameron, and his succession by Theresa May who despite not being part of the “Leave” campaign during the run-up to the vote has since vowed to uphold the will of the British majority with her famous words “Brexit means Brexit”. As part of this pledge, Prime Minister May has argued that the Government can by-pass a parliamentary vote on whether to trigger Article 50 due to the Royal Prerogative.

The Government’s argument was challenged by Mrs Gina Miller, a Guyanese-born British investment fund manager, and Deir Dos Santos, a Spanish-born hairdresser, who were the lead claimants in a case heard by the UK High Court on the matter. In its ruling  R (Miller) v Secretary of State for Exiting the European Union the High Court sided with Mrs. Miller, holding that Article 50 could only be triggered by parliamentary action. The Crown promptly appealed the November 3rd ruling and it is this appeal which is currently before the Supreme Court.

Opening statements by Attorney General

In his opening submissions on Monday, counsel for the Crown, Mr. Wright reiterated that the majority of those who voted in the referendum supported the UK leaving the EU and that Article 50 provides the specific legal mechanism for doing so. He said the divisional court treated this fact as “legally irrelevant” and erred in concluding that it is only by parliamentary action that Article 50 can be invoked. He further argued that “use of the prerogative in these circumstances would not only be lawful, but fully supported by our constitutional settlement, in line with parliamentary sovereignty and in accordance with legitimate public expectations”.

He went on to explain the importance of the foreign affairs prerogative, which includes the power to make and unmake treaties, as “not an ancient relic”, but a “contemporary necessity”.  Acknowledging the UK constitutional law tenet of parliamentary sovereignty, Mr. Wright noted that where parliament has chosen to limit the prerogative, it has done so “sparingly” and “explicitly conscious” of the importance of prerogative powers to government business. A portion of Mr. Wright’s opening submissions may be watched on the Guardian’s site here.

Mr. Wright’s submissions were followed by government lawyer, James Eadie QC, who was asked several questions by the judges during the course of his submissions.

What’s at stake?

According to BBC reporting, the proceedings are expected to last four days and a decision is expected to be rendered in January. It should be reiterated that the matter being decided upon by the Supreme Court is not whether Brexit should take place, but whether the Crown in exercise of the Royal prerogative has the power to trigger Article 50, without first consulting Parliament. As the UK’s highest court, the court’s decision is final.

The stakes are high for the government as not only would the need for parliamentary approval endanger the deadline which Prime Minister May has set for the start of Brexit negotiations, but a possible constitutional crisis of sorts may ensue in the case where  MPs vote against the triggering of Article 50. The governments of Scotland and Wales have been given permission to “intervene” into the case. In Scotland, some 62% of voters had supported remaining in the EU. It should be noted as well that once Article 50 is triggered, it cannot be reversed.

Symptomatic of the public interest and polarisation which this case has generated, various news reports have indicated that there were long queues waiting to get into the court house, as well as protesters on both sides on the streets.

Court resumes tomorrow at 10:15 am (UK time). Please feel free to tune in to any of your favourite media houses for live coverage.

Alicia Nicholls, B.Sc., M.Sc., LL.B., is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

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