Supreme Court Hearing (5-8 December 2016)

Last week, the appeal hearing in the Article 50 case, R (Miller and another) v. Secretary of State for Exiting the European Union took place over the course of four days (5-8 December 2016). The Government had been given the right to appeal the judgment of the High Court (link to judgment)and to bring a “leapfrog” appeal to the Supreme Court.

All 11 Supreme Court justices sat and heard submissions from the Government (the appellant), and for the respondents in the appeal, Gina Miller and Deir Tozetti Dos Santos, as well as two interested parties and five interveners.

The issue before the Supreme Court was the following:

“Does the Government have 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 main points of the Government’s case appeared to be that:

  • the exercise of the prerogative to enter into and withdraw from international treaties and for international relations was in principle “untrammelled” or unrestricted;
  • the prerogative could be used to change domestic legislation;
  • Parliament, when it enacted the 1972 European Communities Act, was merely facilitating the UK’s membership of the EEC, in the event that the Government, in the exercise of its prerogative, took the decision to take the UK into the EEC (i.e. the decision was the Government’s not Parliament’s); and Parliament had somehow, by its silence on the matter, actually exercised its sovereignty and passively consented to the prerogative being used to take away the EU rights of UK citizens legislated for by Parliament.

In response, for the main Respondent, Gina Miller, Lord Pannick argued that: –

  • the 2015 Referendum Act did not give ministers the power under the prerogative to trigger Article 50;
  • the prerogative cannot be used to remove statutory rights and certainly cannot be used to change the UK constitution;
  • the Government must demonstrate that Parliament expressly handed over powers to remove statutory rights;
  • Parliament did not intend that the scheme set up by the 1972 European Communities Act could swept away by use of the prerogative;
  • there are different ways in which the prerogative can be limited – one limit is that there is no prerogative power to remove statutory rights, and this is the case here;
  • none of the other EU related acts over the last forty years gave ministers the power under the prerogative to trigger Article 50; and
  • finally, as regards Parliament’s role, only an Act of Parliament could take away EU rights linked to EU membership created in the last four decades.

Both the Lord Advocate (for the Scottish Government) and the Counsel General for Wales (for the Welsh Government) had been given leave to intervene on devolution issues. The Scottish Government argued that Article 50 could only be invoked through an Act of Parliament and that Act had to be preceded by a legislative consent order in the Scottish Parliament, while the Counsel General for Wales argued that the devolved administrations should be consulted prior to invoking Article 50. In addition, references from two Northern Irish cases, relating to devolution issues and the argument that the particular circumstances of Northern Ireland should be recognised and taken into account, were heard.

The Court’s judgment is expected in the New Year. The Supreme Court will issue an alert prior to its publication. Transcripts of the hearing, and information concerning the arguments of the parliament and the judgment, can be found here.