The UK Supreme Court Case
Today, the UK Supreme Court is due to deliver its judgment(s) in the appeal of the Government from the decision of the Divisional Court in the case of: The Queen on the application of (1) Gina Miller & (2) Deir Tozetti Dos Santos -v- The Secretary of State for Exiting the European Union  EWHC 2768 (Admin) delivered on 3rd November 2016.
The issue in the case was whether the Government had the power to give notice pursuant to Article 50 of the Treaty on European Union of the United Kingdom’s intention to withdraw from the European Union, without an Act of Parliament providing prior authorisation to do so?
The application for judicial review was heard by a 3 Judge Divisional Court: composed of the Lord Chief Justice of England and Wales, the Master of the Rolls and Lord Justice Sales.
The full text of the judgment on the application can be read by clicking on the link above but the essential holding was that the Secretary of State did not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union. The Divisional Court held that this was a matter for Parliament.
It is unlikely that we will be told what legal advice was given to the government about the prospects of an appeal. But the Government did appeal, doubtless because Mrs May did not wish to allow Parliament to get involved in the Brexit negotiations with the Commission, the remaining EU Member states and the EU Parliament.
The Appeal to the Supreme Court
Given the high constitutional issues raised in the appeal the Supreme Court decided to sit en banc so that all 11 Supreme Court Judges could participate in the appeal and in associated cases. The case was heard from 5th to 8th December 2016 – the hearings were televised and the written cases and the transcripts of the hearing are to be found here on the Supreme Court web site.
This morning, a summary of the judgment was read in Court 1 at 9.30 am. This was streamed on line and the full text of the the decision was posted on the Supreme Court web site as soon as the summary had been read.
As one might expect, the Torygraph has obviously been well briefed by Downing Street and it was running a live online page: “Live – Brexit judgement: Supreme Court delivers ruling on Article 50 case“. Even before the release of the decision, there were some significant comments on the page:
“The Government is widely expected to lose the case, forcing it to put the triggering of Article 50 to a vote. But while Theresa May thinks she can still win the vote and avoid being blown off course, Labour has promised to table a couple of tricky amendments and there are likely to be more on the way from the SNP and others on the backbenches.”
“Ministers expect to lose the case and are prepared to go to the Commons with an Article 50 bill within hours of judges announcing their ruling.”
The Independent was also running a live page on line: “Brexit Supreme Court ruling live: Bill to trigger EU withdrawal ‘to be revealed by end of the week’ – Verdict to be delivered on whether Prime Minister has enough authority to enact Brexit alone, or must get MPs’ approval“.
The Supreme Court Judgment
The Court decided by a majority of 8-3 that the Government may not trigger Article 50 without first obtaining the authority of an Act of Parliament. The Court also held unanimously that the Sewel Convention does not give rise to a legally enforceable obligation.
The Press Summary is available on the Supreme Court Website: Press Summary dated 24th January 2017
The full text of the the Judgment – including the dissents (96 pages) is also now available: “R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) REFERENCE by the Attorney General for Northern Ireland – In the matter of an application by Agnew and others for Judicial Review REFERENCE by the Court of Appeal (Northern Ireland) – In the matter of an application by Raymond McCord for Judicial Review“.
Perhaps the most obvious consequence of the result of the appeal is that the Government is going to incur a serious bill of costs both in the Court below and in the Supreme Court. Obviously that will ultimately be paid by the taxpayer – but the appeal to the Supreme Court is likely have more than doubled the bill.
The Guardian has this: “Lawyers warn May against short Brexit bill if supreme court says vote is needed – PM and Brexit secretary are advised not to put single-clause bill to MPs because it could result in further court appeals“. The article includes this:
“Ministers were keen to make the proposed law as short as possible in order to avoid opposition parties being able to heavily amend the legislation and so it can stick to May’s tight timetable for Brexit.
Having promised to start the formal process by the end of March, the ideal formulation from the prime minister’s standpoint would be a single line asking MPs and peers to rubber-stamp the triggering of article 50.
But politicians and strategists have received advice from internal government lawyers who fear that even if the ruling allows a one-line bill, failure to provide enough detail could leave the government vulnerable to further legal appeals in the future.”
There is now the prospect of Parliament derailing the Government’s timetable for triggering the Brexit Article 50 notification. While it is likely that the Government will try to make the bill as short and simple as possible, and equally likely that there will eventually be a vote in favour of negotiations, there is little doubt that many MP’s will wish to table amendments along the way and the same will be true in the House of Lords.
While David Davis, the Secretary of State for Exiting the European Union, did his best to stonewall the questions from many MPs after his statement in the House of Commons on the outcome of the proceedings, one had the impression that he was making the best of a bad job and that the Government is going to have a tough time getting a bill through both houses before the March target date for triggering Article 50.
The Independent has this: “Tory MPs pile pressure on Theresa May to publish full Brexit plan before Commons vote on triggering Article 50 – ‘The passage of the Bill will be swifter if a white paper is published’ – former Education Secretary Nicky Morgan” and also this on the Labour approach: “Keir Starmer hints that Labour rebels in Article 50 vote will escape punishment – The Shadow Brexit Secretary says ‘no decisions’ have been taken about a threatened revolt by some Labour MPs – but pledges it will be resolved ‘collegiately’“. Also this on the SNP position: “Brexit latest: SNP threatens Theresa May with 50 amendments to Article 50“.
Meanwhile Mrs May is off to the USA. That raises other concerns.
Risks of the Trump – Putin Axis
The Independent has this: “Brexit: Theresa May ‘unwitting tool’ of hardline nationalists determined to destroy EU, says Nick Clegg – Former Liberal Democrat leader decries ‘axis of aggressive nationalism’ stretching from White House to Kremlin ahead of PM’s first meeting with Donald Trump” in which there are these passages:-
“Theresa May’s approach to Brexit risks making her the “unwitting tool” of aggressive nationalists seeking to tear the European Union apart, former deputy prime minister Nick Clegg is warning.”
“He will accuse Mr Trump of “effectively colluding” with Russian leader Vladimir Putin to undermine the security and prosperity of Europe, said party aides.”
“Theresa May’s approach to Brexit is not only contrary to Britain’s national interest, it also runs the risk that the Brexit negotiations unwittingly become the means by which the forces of aggressive nationalism seek to unpick the EU itself. My message to Theresa May is clear: as you travel to Washington this week, beware the dangers of becoming an unwitting tool for the isolationism of Trump, Putin and nationalists across Europe.“
”Her vision for a hard Brexit will pull us out of the European single market, the world’s largest borderless marketplace – which was, let’s not forget, designed by the British and championed by the Conservative prime minister at the time, Margaret Thatcher. That is the wrong choice for Britain’s interests.“
The Wicked Witch of Westminster might reflect on this while she visits President Trump in the USA. There are some cogent arguments in this Economist piece: “Donald Trump’s win will make Brexit more painful“.
Plainly, Mrs May cannot do otherwise than talk to Donald Trump. He is, for better or for worse (more likely for worse), the President of the United States of America, a country which has been the premier power in the free world since WW2. This op-ed in the Washington Post is relevant: “More signs that Trump is out of touch with reality“.
There is a risk that the combination of Trump and Putin could do immense harm both to the United Kingdom and to Europe.
So one has to hope that Mrs May will not return from Washington waving a scrap of paper at the airport.