The legal battle over whether Parliament should be involved in the triggering of Brexit, continued on Monday as the eleven justices of the Supreme Court began hearing the government’s appeal against the High Court ruling last month.
In early November, the High Court had rejected government arguments that clauses in a piece of legislation from 1972 gave it powers to act without parliamentary approval when it came to triggering Article 50, which gives EU member states a two-year period to withdraw.
The case was one of “great constitutional significance,” said Attorney-General Jeremy Wright QC, opening the case for the government on Monday. The referendum had happened, he argued, in the “universal expectation” that the government would implement the result.
Centring his arguments around the use of the royal prerogative by the government, Mr. Wright argued that this was not an “ancient” relic but a “modern necessity” and had been exercised by the government frequently particularly in the foreign policy arena when it came to the making and unmaking treaties. Parliament had already considered with care and detail the extent of its involvement in the making of treaties, he said.
Mr. Wright also pointed to the opportunities Parliament had had to give itself a say in the EU processes, noting the EU referendum legislation passed by both Houses of Parliament that had included no requirement of returning to Parliament.
“It is not as though Parliament has been short of opportunities to impose such restrictions if it had wanted to,” he said. Parliament, would, he insisted, have a say in the process via scrutiny of legislation such as the Great Repeal Bill, which would repeal the 1972 European Communities Act and bring EU law into domestic law.
The government’s appeal is set to continue on Tuesday morning, with the respondent, Gina Miller’s legal team commencing arguments on Tuesday afternoon. The hearings will run till Thursday, with the justices expected to give their verdict in the New Year.
The case has generated huge interest both in Britain and abroad and has been seized upon by both Remain and Leave campaigners, with the Daily Mail labelling the three High Court judges who gave the ruling “Enemies of the People” to widespread public condemnation, while Ms. Miller herself has received death threats.
On Monday, Lord Neuberger, president of the Supreme Court warned against the threats and abuse of people who exercised “their fundamental right to go to court.” The wider political questions were not the subject of the appeal, he said. “This appeal is concerned with legal issues, and as judges, our duty is to consider those issues impartially and to decide the as according to the law.”
