Nigel Farage might have threatened to lead a protest march of 100,000 Brexiters to the Supreme Court, but on Monday the number of Europhile protesters outnumbered that of Brexiters. It was the first day of the British government’s legal fight against the high court’s decision that only parliament has the power to trigger article 50. During the course of four days, the Supreme Court’s 11 senior judges—the largest panel of judges ever gathered since the creation of law lords in 1876—will be hearing the argument of the government and its challengers about who in the UK has the authority to notify the EU that Britain will be withdrawing from the EU. The judgment will be delivered in January.

On Monday morning, outside the court, a double decker bus passed with EU supporters in judges’ robes and wigs, chanting, “Nigel, where are you?” It was followed by a van decorated with the slogan “The Brexiteers have failed us all.”

The Government’s position

On the first day of the hearing, the attorney general for England and Wales, Jeremy Wright Queens Counsel (QC) and MP, gave a summary of the government’s position. He explained that royal prerogative powers are part of the UK’s unwritten constitution and can be used legitimately to authorise international treaties, such as the triggering of article 50. He said that the British voted in the EU referendum “with the universal expectation that the government would implement the result.”  


Royal prerogative: It confers executive powers to the British government. As a concept, it is difficult to define, but it usually refers to any act that the executive government can perform without an Act of Parliament.

 

Wright pointed out: “The foreign affairs prerogative is not an ancient relic, but a contemporary necessity. Including the powers to make and withdraw from treaties, it is a fundamental pillar of our constitution as a sovereign state and it is essential to the effective conduct of public business.” 

James Eadie QC, who followed Wright’s opening submission, repeated that the government had the executive powers to decide on important issues, but the judges challenged the limits of the royal prerogative. Lord Wilson and the president of the supreme court, Lord Neuberger, stated that the government and parliament had worked together in 1972 when the European Communities Act (ECA) came into effect. This was the act that opened the path for Britain to become a member of the European Economic Community (EEC). Neuberger noted: “Parliament did its bit in passing the 1972 act. It was very much a joint affair. Whereas on [the government’s] argument, our withdrawal will not be a joint effort.” Wilson asked rhetorically: “If entry [to the EU] was the result of a joint effort, should our departure also not be so?”

Eadie found the judges’ argument unfounded, saying that, “What we are in the process of answering is a contemporary legal question,” and it’s not the same as the 1972 act. 

It was also said that parliament could have removed the royal prerogative in the past on many different occasions. Wright said that parliament had taken part, “fully and consciously,” in drawing up the referendum legislation and it “expected the government to act on the answer the people gave.” He added: “When it comes to leaving the European Union, parliament has had full capacity and multiple opportunities to restrict the executive’s ordinary ability to begin the article 50 process, and it has not chosen to do so.”

Eadie had also confirmed yesterday that, in the event that Theresa May lost the court case, she would propose a “one-line act” to parliament requesting permission to trigger article 50. Such an act wouldn’t reveal the government’s negotiations.

The Challengers

The challengers have assembled a group of QCs to support their view that the government cannot remove the rights that have been granted to citizens through domestic laws by executive ruling. On the second day of the appeal, Lord Pannick QC, opened the argument on behalf of Gina Miller, the lead claimant. He gave 7 reasons why the government cannot trigger article 50 without parliament. He argued that the government’s position was “inherently implausible.” 


1. Pannick’s first reason was that the referendum act didn’t give prerogative powers to ministers to trigger article 50. The government, he reminded the court, had rejected SNP Alex Salmond’s proposal to give legal force to the referendum in a 2015 debate on the EU Referendum Act. The act “did not address any consequence, far less did it address the process for leaving the EU if the people voted, as they did, to leave.”

2. His second reason referred to the limited power of the prerogative powers of ministers to enter into treaties, but not to change the constitution. The prerogative powers to enact or change treaties was limited to the extent they didn’t interfere with domestic law.

3. Thirdly, Pannick said that parliament hasn’t given any powers to ministers to replace legislation in relation to Brexit.

4. Parliament didn’t indicate that the 1972 Act offered any ministerial prerogative power to take away EU membership.

5 and 6. Ministers don’t have the executive powers to change legislation or trigger article 50.

7.     He reiterated that there was “no relevant prerogative power” and triggering article 50 would be an action beyond the government’s powers. Pannick told the justices that triggering the Brexit negotiations would mean to repeal the 1972 EEA, which has constitutional status. To do so, it will require parliamentary approval, and not just prerogative powers. He added that, “however flexible our constitution is,” it would be unbelievable “that ministers could take away what parliament had created.” As he put it, “Parliament has created and parliament can take away.”

The question is whether the government, with its executive powers, or parliament, since it had the power to pass the 1972 European Communities Act, can trigger article 50. The case brings to the fore the crucial issue of the UK’s unwritten constitution, as both sides are citing different cases to support their opposing claims. 

The case echoes some of the concerns found in the Italian referendum of whether to limit the powers of the Senate or not. Many Italian voters voted “no” so as to challenge parliamentary absolutism and halt the powers of future extremist governments. In this sense, the Brexit Supreme Court case seeks to decide whether the government should be the sole body to make a decision that will fundamentally change the rights of its European citizens. 

As the Lib Dem leader, Tim Farron, said in September in relation to another future referendum, the June vote was on departure, "is not the same as voting for a destination." And indeed, the government and the parliament need to work together to find the best deal that works for everyone, and not just for the government.