This week, a date was released and confirmed which set many legal eagles on Twitter aflutter with excitement and anticipation. The date promises to be a landmark in UK constitutional law, dealing as it does with the tangle that is law, politics, Parliamentary sovereignty, and royal prerogative. I am of course referring to the important legal challenges to Brexit, which last year reached the highest court in the UK, the UK Supreme Court.
The UK Supreme Court will deliver its long-awaited judgment on Tuesday 24th January on whether UK government Ministers or the UK Parliament have the legal authority to invoke Art 50, and thus trigger Brexit. More specifically, the ruling will resolve whether the UK government, through its inherited use of royal prerogative powers, may invoke Art 50 TEU without the explicit approval of MPs and peers. Invoking Art 50 formally begins the process of the UK’s withdrawal from the EU. If a majority of justices decide, as is widely expected, that parliamentary support is required, then the judgment is expected to specify that a legislative act is needed.
Art 50 states any member state may leave “in accordance with its own constitutional requirements”, an undefined term that has allowed the UK government and the citizens behind the legal challenges to pursue rival interpretations. Consequently, and unsurprisingly, the case has opened prompted debate over the interpretation of the unwritten constitution of the UK.
Moreover, the ruling will have implications outside of England. The devolved administrations in Edinburgh, Cardiff and Belfast will also read the judgment closely to see whether it grants them any procedural or consultative role in the process. (This should be interesting in the case of Northern Ireland, given that Stormont will be dissolved from 26th January onwards due to a snap election being held in March.) The judgment will test the significance of the Sewel convention, which says that if Westminster is introducing legislation on issues that have been devolved it “normally” has to seek the consent of the devolved parliaments.
The lead claimant in ‘main’ case (the one which the Anglo-Welsh High Court found in favour of the applicant) is the investment manager Gina Miller. Ms Miller, who says she has received death threats, has said her case is about asserting Parliamentary Sovereignty and not an attempt to reverse Brexit. Another claim was brought by a London hairdresser, Deir Dos Santos.
The case was conducted on the basis that Article 50, and therefore Brexit, cannot be reversed once begun. But it shall not be the only legal challenge on the matter – a separate legal challenge is due to take place in Dublin this spring to test its revocability. Another is due to be heard in London to establish whether the UK automatically quits the single market or European Economic Area when it leaves the EU.
The panel of 11 justices is the largest ever assembled for a single case since the law lords were created in 1876. This large sitting is recognition of the constitutional significance and political sensitivity of the cases at hand. The court normally sits in panels of five.
The reading of the summary by Lord Neuberger is expected to last only five minutes. The proceedings will be broadcast live on the supreme court’s website. Lead counsel from the main parties will be given sight of the judgment an hour and a half in advance of its delivery.
The full judgment will be put online at around 9.35am. The court’s judgment may be divided into several sections depending on whether or not individual justices choose to deliver dissenting – or concurring judgments stressing different aspects of the ruling.
Draft versions of judgments are often circulated to parties involved in a case several days beforehand. Government sources have already signalled that they expect to lose the main point of their appeal and have begun drafting versions of a bill to put before parliament approving Brexit.
Tuesday 24th January will prove to be a monumental occasion in both UK law and politics. It will be interesting to see which side the UK Supreme Court finds in favour of, and interesting to see the response of the UK government going forward.