What is the Supreme Court actually deciding and why are the Brexiteers so mad about it?

If you live in the UK then this week you will be aware that something big happened at the Supreme Court in London. Over the course of 4 days, the 11 most senior judges in the United Kingdom listened to the cases of the Government and the Crown on behalf of two citizens. They will come to a judgement in January that will mark a landmark case which will shape the future Constitutional Law of the UK and will affect the process of Brexit. Everyone seems to know this, but what many don’t understand is what the actual case is about.

Many in the UK presume, largely those who voted Leave, that this Supreme Court ruling is on whether Brexit will occur or not and their confusion is understandable. The Government, when the case was still at the High Court, urged the judiciary not to ‘ignore the will of the people whilst the Daily Mail screamed at the public after the High Court ruled against the Government that the judiciary were the ‘the enemies of the people’. Outside of Parliament protesters hold signs calling against ‘an establishment stitch-up‘ with the vox populi on the street saying that ‘We’ve voted out so why are the judges stopping us?’.

Two pro-Brexit protesters outside Parliament. Whilst their annoyance is understandable, do they really realise what the Supreme Court is actually ruling on?

In actual fact, the Brexit battle, whose actual name is ‘R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references’ is a historically important case which is to clarify which branch of the state has the authority to begin the formal Brexit process through the triggering of Article 50 of the 2008 Lisbon Treaty: Parliament or the Government?

The arguments of both parties (the respondents and appellants, if you want to use the legal terminology) is, at heart, relatively simple. The Government, or the appellants, in this case believe that, under the powers of the Royal Prerogative, the Government can trigger Article 50 without consulting Parliament. The Royal Prerogative powers are powers held by the Government and its Ministers on behalf of the Sovereign and are what gives the Government the ability to sign treaties and declare war, without Parliamentary approval. Although recently Parliamentary consent has been sought before entering in conflict, such as the 2015 debate on the RAF launching airstrikes in Syria, legally the Government has the authority to act without any consultation from Parliament. The Government argues that due to the UK’s withdrawal process being governed by the Lisbon Treaty and the fact that the UK signed up to the European Economic Community in 1972 under the Treaty of Accession, that the Royal Prerogative powers of treaty signing or withdrawal give the Government the authority to trigger Article 50 and leave the EU without consulting Parliament.

Conservative Prime Minister Edward Heath (Centre) signing the 1972 Treaty of Accession which would bring the UK into the EEC. The Government today argues that if the Royal Prerogative could take us into the EU, it can take us out.

However, as understandable as the Government’s position may be, the respondents in the case, the former Remainers represented by Gina Miller, believe there is a huge flaw with the Government’s planned exit procedure. Whilst it may have been the Treaty of Accession which committed the UK to its EEC membership, it was not the legislation that gave EEC and presently EU jurisdiction over certain aspects of the UK’s administration – that would be the European Communities Act of 1972 – an act of Parliament, passed by MP’s. The Act gives the EU, through its obligations and treaties, authority to affect direct change on UK legislation, such on standards of imported goods from outside of the EU and in other circumstances, through directives and decisions, sets provision for Parliament to reach EU goals through legislation they may decide on. The Act also gives the European Courts of Justice supremacy over the national courts in certain scenarios. All together, for the UK to leave the European Union and ditch the supremacy of the EU administration, it would have to repeal the 1972 Act. However, the Royal Prerogative, the authority by which the Government would like to trigger Article 50, does not have the power to repeal domestic legislation, such as the 1972 Act. Thus the Remainers argue that Parliament must have the say on triggering Article 50 because in leaving we would have to repeal a piece of domestic legislation.

In brief, that is the argument which is currently being fought over in the Supreme Court, but it only shows a small sliver of the overall argument which is being fought. Ironically, in this most important of legal cases, the legality of the case is the least important aspect to most people. This case is at the heart of a political discussion more fierce than any General Election. The Remainers argue that if the Government takes us out of the EU unilaterally it will erode the sovereignty of Parliament and set a dangerous precedent for using the Royal Prerogative to bypass Parliament in the future. The Government argues that the Remainers are trying to frustrate their job – the Referendum gives the Government authority enough to decide when we should leave, using the Royal Prerogative. Throw into the mix the threats of violence made against Ms Miller and Remain MP’s such as Anna Soubry, the scaremongering by the die-hard Brexiteers and the confusion experienced by all when confronted by this heady mess and you create a polarising event, seen by many as a conspiracy to avert democracy when in actuality it is only debating a dry constitutional issue, which will likely have little impact on the nature of Brexit at all, merely its timing. Except in this new age of post-fact politics, what the Supreme Court are deciding really doesn’t matter to the die-hard Eurosceptics. They can taste Brexit and want it as soon as they can and will happily target anyone who even so much as delays it, even if those people are the highest authorities of the law in the land, or the Parliament to which they argued sovereignty needed to return.

Thanks for reading my little piece on the Supreme Court battle. What do you think about the case?

See you next time!


UPDATE (24/1/2017): Supreme Court has ruled against the appeal by the Government by a margin of 8-3. BBC News article on the subject can be found here, full Supreme Court ruling can be found here.