Supreme Court Judges Ask Whether Lawmakers Need Brexit Vote

Updated on
  • Justices say Parliament may have ceded powers in referendum
  • Legal challenge attempting to force vote on Article 50 trigger

Market Implications of Brexit Negotiations

Supreme Court judges questioned some of the legal theories behind the challenge to the U.K. government’s Brexit plans, saying it’s possible that Parliament gave the final say on leaving the European Union to the British people by agreeing to hold a referendum.

After probing the arguments made by the government in the first two days of the landmark legal challenge, the justices turned their attention to lawyers on the other side, who are calling for a full vote in Parliament before the U.K. gives formal notice of its intention to leave.

“It seems to me there may be some force in the argument that when Parliament comes to face up to this issue they say: ‘We’ll let the British people vote,’” Judge David Neuberger, the president of the Supreme Court, said Wednesday morning. "One could say it is Parliament ceding power to the people."

David Pannick, a lawyer representing one of the challengers, finance entrepreneur Gina Miller, responded that it was unlikely lawmakers had intended important constitutional principles to be overturned. The government is appealing a lower court’s decision that backed Miller’s position that it can’t invoke Article 50 of the Lisbon Treaty without first consulting Parliament.

As the 11 Supreme Court judges weigh the most important constitutional case of modern times, they have made critical comments about the positions of both sides. If Miller succeeds in her challenge, which is backed by Welsh, Scottish and Northern Irish lawmakers, it could hinder Prime Minister Theresa May’s plans to swiftly trigger Article 50 and start the two-year countdown to Brexit.

May’s Strategy

May has agreed to reveal more details about her Brexit strategy as long as lawmakers vote to back her plan to submit the notice as soon as March. Parliament was debating the motion Wednesday, which Pannick said won’t affect the legal action at the Supreme Court.

Keir Starmer, the opposition Labour Party’s Brexit spokesman, said the debate won’t authorize the start of the exit process.

“Today is not a vote to trigger Article 50 or to give the prime minister the authority to do so,” Starmer said. “Unless the Supreme Court overrules the High Court, only legislation can do that.”

Miller and the other claimants want to force May to introduce a bill to trigger the start of the process. After the lunch break, the justices started to question whether legislation with a series of debates would be necessary or would May be able to meet the requirement with a less rigorous motion, like a debate in Parliament.

Can the court say “a motion won’t be good enough, even if Parliament unanimously votes in favor?” Judge Robert Carnwath said. “Can we say that’s not good enough, it has to be that one-line bill?"

"That is the position," said Dominic Chambers, the lawyer of Deir Dos Santos, a hair dresser contesting the case.

Odd Position

"The average person in the street will think it seems odd if one says you have to go back to Parliament and have an act of Parliament passed to show what its will is when you’ve already been to Parliament and had a motion that’s been approved," Neuberger said.

Neuberger and another Supreme Court judge, Robert Reed, both pointed out that since the June referendum, the government may be free to enact Brexit without court intervention.

“There isn’t a legal issue that arises here," Reed said.

Laws Disappear

Attorneys for Scotland and the other nations that make up the U.K. are also attempting to force a vote.

James Wolffe, the Scottish Lord Advocate, said he didn’t "assert" that the Scottish Parliament had a veto on any decision to withdraw from the EU.

"That decision is ultimately for the Queen in Parliament," Wolffe said. "When the U.K. was founded in 1707 it was to Parliament and not to the crown that the power to change the law in Scotland was given."

Earlier, Pannick sought to turn U.K. Brexit Secretary David Davis’s words against him by highlighting an Oct. 10 speech in which the cabinet member suggested that EU laws built up over 40 years in Britain would disappear “on exit.”

"We respectfully agree," Pannick said. Davis "must obtain a parliamentary authorization to take steps which will lead large elements of the statute book to be rendered insensible."

The Metropolitan Police said Wednesday that they had arrested a 55-year-old man in Swindon, western England, for making online threats to Miller. He was released on bail. Another man from Fife in Scotland was given a cease-and-desist order on Dec. 3 as part of the same investigation, the police said.