The UK’s Supreme Court was opened in 2009 replacing the Judicial Committee of the House of Lords as part of a package of constitutional reforms. It is housed in a grand building on Parliament Square facing the Houses of Parliament and a short walk from the Westminster-based ministries that include David Davis’ Department for Exiting the European Union. This geography is a permanent reminder that Parliamentarians make the law, the Court independently interprets and applies it and government must answer to both.
In just over two weeks, on 5 December, Mr Davis’ lawyers will argue that the invocation of Article 50 is a special case, that his powers to take this step do not come from Parliament, or any Act, but rather the Crown in the form of the Royal Prerogative. There will not be a new argument from them that the EU Referendum was binding and so a source of legal power. Nor will the government argue, its announcements indicate, that an Article 50 notification can be withdrawn if there is Parliamentary intervention at some later date. So far all the signs are that the government will maintain very similar arguments to those it presented to the Divisional Court.
It might be thought, then, that the Supreme Court hearing will be a premature remake of the drama that unfolded in Court 4 just a few weeks ago. But that would be wrong. There will be many differences, all calling for careful and hard work by the People’s Challenge legal team, the Claimants’ lawyers and others arguing the Divisional Court was right in holding Mr Davis has to seek power to invoke Article 50 from his fellow MPs in the House, rather than the Palace.
First, both the Scottish and Welsh governments have been given permission to ‘intervene’ to develop the devolution arguments originally raised by the People’s Challenge team from their own perspectives. Both will argue that the devolution arrangements are a further constitutional bulwark against invocation of Article 50 that only and Act of Parliament can dismantle. And, very appropriately, five key devolution questions that are particular to Northern Ireland have been referred to the Court by the Northern Irish Court of Appeal so that they can be considered at the same time as the appeal in Miller and others. The arguments on Northern Ireland will be presented by the Agnew and McCord legal teams and defended by the government. Northern Ireland’s Attorney General may also make an appearance.
Secondly, many other interventions are being attempted. Two have already been granted permission – those by Fair Deal for Expats (who were involved in the Divisional Court) and from Independent Workers Union of Great Britain. Decisions on others, including one from the pro-leave Lawyers for Britain group, are pending decisions on permission.
All of this will make for a busy hearing. The Court has yet to decide how long each party’s barristers will be allowed to speak – or whether interveners’ barristers as will have the opportunity to speak at all.
And this in turn makes the next step that needs to be taken in the case particularly important. That is for each party and permitted intervener to meticulously prepare their ‘written cases’ - the arguments developing their own positions in the light of what the Divisional Court held and responding to what others have to say.
Work on the People’s Challenge written case is already well underway and a first draft has been circulated amongst the team, enlarged today to include David Gregory who is undertaking further research and analysis on EU rights issues.
The government’s own Written Case has just been served and we will circulate it as soon as it is published. Ms Miller and Mr Dos Santos have until next Friday to file their Written Cases. We have until Tuesday 29 November to file our own.
Supporting these documents will be dozens of comb-bound volumes of statutes, cases, academic articles and other legal material which will also be produced in electronic form for the more technologically savvy. The Supreme Court justices judicial assistants will be looking at much of this material already.
We already know that the Supreme Court takes this case as seriously as it should. All 11 currently serving justices will hear it - an unprecedented step for the Court. One, Lady Hale, has spoken about the difficult and delicate issues it raises, prompting controversy and even suggestions that she should recuse herself. These are misplaced. Her comments simply identify some of the obvious challenges the case presents for the Court - and will present for Parliament if the appeal is dismissed. They are a very long way away from anything that would cause a fair-minded observer to believe she was biased.
Along with the parties, their lawyers, the Court’s Justices, press and the members of the public who arrive early enough to be admitted to the hearing, the path the Supreme Court is apparently also going to be walked by Nigel Farage and 100,000 supporters to “remind the Government, politicians and the establishment, including the court, that they cannot ignore the democratic vote of the people in the referendum.”
But this is a drama that has a class not of thousands, but millions, 65 million UK citizens to be precise – and many other EU nationals living here in the UK too. All eyes will be on the Court (which will broadcast proceedings live). Many will be hopeful that it will make sure the protection of their rights remains the responsibility of those sitting in Parliament just opposite the court, and is not handed over to Mr Davis and his civil servants down the road.
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