For once, a cliché is justified: the government’s appeal to the Supreme Court next week really will be a landmark case. The underlying issue could not be greater: the political future of the United Kingdom and its relationship with the European Union. The number of judges could not be greater either: 11 is the largest panel to have heard a single appeal, not just since the court was created seven years ago but since its predecessor was established in 1876. But perhaps the greatest issue at stake is the reputation of the judiciary, at a time when judges are under attack as never before.
Nigel Farage had threatened a 100,000-strong march on the Supreme Court. He has since changed his mind, but there will be no shortage of drama. Theresa May’s case is that her government does not need a vote in Parliament to give formal notice of its intention to leave the European Union. The people voted on 23 June, she said, so that’s that. An investment fund manager named Gina Miller disagreed, and took her to court. Only Parliament can take away rights that Parliament has granted, she said: in this case, through the 1972 Act that took Britain into what is now the EU. The High Court upheld her complaint last month, to the fury of Mr Farage and others who see a plot to sabotage Brexit.
The next stage is an appeal to the Supreme Court, which has set aside four days for the televised hearing. There will be quite a cast: the court has agreed to consider representation from the SNP-led Scottish government as well as an outfit called the Independent Workers Union, both of which oppose Brexit. The show is certain to end on a cliffhanger, with the ruling not expected until the new year. All told, we are set for a courtroom drama the like of which Britain has seldom seen before.
The Supreme Court itself is a modern invention, set up under Tony Blair’s government. Its name is deceptive — inviting confusion with the United States Supreme Court, which can overrule governments. But this is the oddity about Britain: we don’t have a written constitution or judges who can declare laws unconstitutional. Here, Parliament remains supreme. If it doesn’t like what the judges decide — in this as in any other case — it can overrule a judgment by passing legislation. To quote Vernon Bogdanor’s pithy summary of the British constitution, ‘What the Queen in Parliament enacts is law.’ The only catch is that Parliament must use clear wording. If it leaves legislation incomplete — like the European Union Referendum Act 2015, which says nothing about the consequences of a Leave vote — then the judges can’t be expected to fill in the gaps.
The Prime Minister argues that there are no gaps because her government can exercise ancient powers without Parliament’s approval. The courts define these so-called prerogative powers as ‘the residue of legal authority left in the hands of the Crown’. But because the UK’s constitution is not codified, these powers are not listed. Mrs May and her lawyers had assumed that such powers extended to implementing the result of a referendum. They assumed wrongly.
So, does the High Court decision represent a lawyer’s intifada, or simply a calm determination to uphold the law? The Daily Mail’s voice has been, as so often, the most forceful in the debate. It was an outrage, the paper said, for three ‘out of touch’ judges to rule that ‘embittered Remainers in Parliament should be allowed to frustrate the verdict of the British public’. It believes that the judgment put Britain ‘on course for a full-blown constitutional crisis’ and that the judges who heard the case were (as its headline put it) ‘enemies of the people’. The judges may rise above this personally, but they will be anxious about the damage done to public confidence in the judiciary — and the wider constitutional balance. Lord Hope, formerly the UK’s second most senior judge, summed it up well this week. ‘If you diminish the judiciary in the eyes of the public,’ he said, ‘then the executive may think they can get away with things that diminish the judiciary too.’
For years, now, I have been following the former BBC producer Angela Holds-worth on Twitter, noting that she has not been inhibited from speaking her mind by the fact that her husband, Lord Neuberger, is president of the Supreme Court. She has occasionally expressed dismay at the Brexit vote. But the court’s conduct guide asks its justices to ‘bear in mind that political activity by a close member of a justice’s family might raise concern in a particular case about the judge’s own impartiality’. When it was suggested that Holdsworth’s tweets might amount to political activity, Neuberger’s spokesman said (not unreasonably) that her comments had no bearing on his ability to decide the legal issues in the case impartially.
