We began the year with Brexiters urging us to take back control, to have our laws made by the British parliament, and our laws interpreted by British judges in British courts. We end it to a rousing chorus of Leavers saying “No, not that parliament. And not that court”.
Theresa May told the country she could unilaterally trigger Article 50, only to be told by the High Court she could not but required parliamentary authorization. The government appealed this decision to the Supreme Court, which will deliver a verdict in January.
In addition to the original parties who brought the case against the government, the Supreme Court heard interventions from Edinburgh and Cardiff as the devolved governments argued they too should have a say on the timing of any notification. An additional claimant was also permitted to argue that the unique situation of Northern Ireland meant it deserved special consideration.
Much of the press coverage focused with predictable venom on the character of those seeking to assert their rights rather than on the central issue of how the UK should go about implementing the referendum result and leaving the EU, which Vote Leave’s campaign director called the “hardest job since beating the Nazis”.
In court, David Allen Green writes, the government faced the problem that much of its case rested “on inferences and implications”. Parliament has not explicitly stated that the executive cannot exercise its power in this way, its lawyer argued, and there is an implied legal consequence to a leave vote in the act allowing for the referendum.
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The parties on the other side had an apparently more straightforward argument. The government had described the referendum as advisory, so any consequences would be political, whereas to repeal the 1972 European Communities act would require explicit legislation.
In addition to that case were the specific concerns of the devolved regions. The government will need to be proved right in every argument to proceed as it wishes.
However the Supreme Court rules, the government received something of a grilling. At one point, government lawyer James Eadie was described by Lord Sumption as seeming “to have given two diametrically opposed answers in the last five minutes to the same question”.
At stake is the prerogative of the executive versus the rights of elected lawmakers. As InFacts argued back in July, whatever the courts say it should be our sovereign Parliament that gets the final say.
Having watched parts of the Supreme Court hearing, I was struck by the calm, measured and serious nature of the proceedings. While the judges were obviously only too well aware of the political background, they made it clear that they were interested only in the law. And it was not only Mr Eadie who was given a hard time. Lord Neuberger had some incisive questioning for Lord Pannick which made the government’s case look better than the government’s own barristers had made it look. All in all, fascinating and very important constitutionally – which makes Duncan Smith’s article in the D Mail all the more disgraceful.