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Friday, 2 December 2016

Next week - UK Supreme Court hears the Brexit case

Next week, there is a once-in-a-lifetime opportunity to become a UK constitutional law expert.  The Supreme Court (which truly is a UK court, not an England-and-Wales court) will hear the appeal on the various legal challenges related to the Brexit process.  This is not of course an intellectual property matter, but please show forbearance as this Kat is enormously excited about it. It is probably the most important legal case in his lifetime, and could well be the case of the century. Many readers will doubtless already be aware of next week's hearing, but others may not be familiar with the arrangements.

As a brief background, the case is not about whether or not the UK will leave the EU.  Rather, it is about who, within the UK constitutional framework, has the power to take the decision to leave the EU referred to in Article 50(1) of the Treaty on European Union, and make the notification under Article 50(2).  Is it the Prime Minister acting alone, or is an Act of Parliament (and possibly the consent of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly) required?  The case therefore goes right to the heart of the constitutional settlement in the UK, including the rights of the devolved legislatures of Scotland, Wales and Northern Ireland, and the respective powers of the Westminster Parliament on the one hand and the Government, who have executive powers independent of Parliament under what is termed the Royal (or Crown) Prerogative, on the other.

The historic hearing is set for four days from 5 to 8 December and includes as advocates some of the finest legal minds in the country. For the first time, the Supreme Court will sit in its full current composition of 11 judges (handily avoiding both the possibility of a tied decision, and any suspicion that a different composition would have reached a different conclusion).

There is unprecedented and most welcome transparency about the case.  Not only will the case be streamed live from the Supreme Court website (so, unless the technology breaks down, you will be able to view from the comfort of your office, your sofa, or a beach in the Seychelles), but the submissions of the parties have been made available online as well.  These, together with a timetable for the hearing (illustrated below), can all be found on the Supreme Court website.  So you can spend your weekend reading the written arguments, and procrastinate once again on your Christmas shopping, should you wish.



Technically, the case is a little complex, as it involves an appeal of the Brexit case that was heard in London by the Divisional Court of the Queen's bench, which decided against the Government (reported by this Kat here), a referral from Northern Ireland in respect of the case heard in Belfast that decided the points in the Government's favour, various interveners and interested parties either from the original cases, or who were given permission by the Supreme Court to intervene, including both the Scottish and the Welsh Governments.  The hearing will be crammed with QCs from across the country, and the complexity of the background of the cases and the large number of parties result in a 4-day marathon.

This Kat thinks it will be fun, and hopes he is not proved wrong.  He is far too cautious to predict the outcome, which is expected to be known in January.

UPDATE:  The IPKat has been sent a link to a summary of the arguments before the Supreme Court produced by Edwin Coe (acting for one of the respondents).  The link can be found here.

7 comments:

Gilman Grundy said...

FWIW - I expect a government win (but then I expected one at first instance as well, so . . ).

The argument that the ECA simply implements EU law into the UK, and that there being no EU law for the EU to bite on is also contemplated in the ECA ("time to time") seem pretty insuperable.

Kay said...

Thank you, and thanks to Mr. Coe for the summary.
As continental European, I am not that concerned about the outcome, but am very interested in the outcome nonetheless.

I wish the judges plenty wisdom, and the stamina to keep fully focused on this important and urgent subject.

Leo said...

I think given the success of the Italian referendum in deciding on constitutional issues we need to have referendum on this case. We are after all deciding on the limits of the power of parliament, and so the will of the people needs to be taken into account.

It's also progress that we are finally politicising our judges to become more like the US Supreme Court. Having judges deciding on the legality of government actions based on conflict with the power of parliament gives them a new power which cannot be easily side stepped.

Anonymous said...

In our current post-truth world the last thing the UK needs is another referendum. The public cannot be relied upon to make a considered decision, not because we are incapable, but because political campaigns are currently allowed to spew misinformation and outright lies without sanction.

Anthony Franklin said...

Interesting to note that almost identical arguments are currently being ventilated in the High Court in South Africa regarding the power of the executive/parliament to withdraw from international treaties – in this case the Rome Convention on the ICC. See http://www.timeslive.co.za/politics/2016/12/05/Court-called-to-decide-who-has-power-to-sign%E2%80%9A-withdraw-from-treaties

Proof of the pudding said...

@Gilman: the "conduit" argument is indeed a substantial improvement upon everything that the government argued before the Divisional Court.

However, whilst it might be better it is still quite a way from a slam-dunk. An obvious riposte is that the provisions of the Bill of Rights still apply to all actions that the government purports to take and that are exclusively within its control. (This distinguishes acts, such as triggering Article 50, that are conducted solely by the government from acts conducted by, or in collaboration with, other sovereign states.) So, the actions of the executive are still constrained by the Bill of Rights.

I am sure that Lord Pannick could express the relevant principles more eloquently than me, but I hope that you still get the point.

The new arguments also raise other, more interesting questions. For example, why were those arguments not made before now? And if those arguments truly are freshly minted, then upon what legal advice did the government originally base its decision to trigger Article 50 using royal prerogative?

Tiglath Pileser said...

If the UK were to withdraw from the EPC (not a course of action being recommended here), would the UK government need Parliament's approval before notifying the German government of its denunciation under Art 174 EPC?

Just askin'.

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