Countering the court, the U.K. government insists it will move ahead although a successful outcome is not guaranteed.
The U.K. Supreme Court has set December 5 as the day to hear the government’s appeal against the High Court’s landmark ruling that said Prime Minister Theresa May does not have power to start the two-year, Brexit divorce proceedings with the E.U. without the prior authority of Parliament.
The hearing is expected to take four days with a decision handed down sometime in the new year. It will be the first time that all 11 justices will sit to hear a case.
The High Court’s ruling was on the case brought by Gina Miller, a founding partner for the firm SCM Private, which she co-founded in 2014, along with several other applicants, including the so-called “People’s Challenge,” which has the backing of thousands of supporters.
They argued that individual members of the cabinet have no legal power to activate Article 50 without the prior approval of Parliament and members of Parliament (MPs). However, government lawyers contended that its executive powers under the royal prerogative were a legitimate way to give effect “to the will of the people” who voted by a clear majority to leave the EU in the June referendum.
The royal prerogative is a collection of executive powers derived from the Crown from medieval times. They were once employed by all-powerful kings and queens, but have been dramatically reduced over centuries and the remainder are now vested in the hands of ministers. The court ruled that exercising them is controversial because they have the effect of by-passing the country’s “supreme” Parliament.
The U.K. government remains undeterred with David Davis, a Brexit Secretary, insisting that it remains on track to initiate Article 50 at the end of March next year as intended. He said that Parliament would have a “central role” in the UK’s exit talks, but there was a “balance to be struck” between revealing its negotiating position and abiding by the principle of parliamentary scrutiny.
Some industry participants say they believe that gaining the appeal may not be that straightforward given that the judgment handed down by the High Court was not only seen as robust and well-reasoned, but also delivered by three of the U.K.’s most senior judges.
Charles Hepworth, investment director, GAM
As partner Davina Garrod, who focuses on trade and financial regulatory issues, at law firm Akin Gump Strauss Hauer & Feld, points out: “An impressive bench of judges, including the Lord Chief Justice and Master of the Rolls, upheld the fundamental principle of Parliamentary Sovereignty. A successful appeal in December looks unlikely given the seniority, expertise and experience of the first instance judges.”
Charles Hepworth, investment director, managed portfolios investment team member at GAM, a global asset management firm, also says that the appeal throws more spanners into the Brexit works.
“It now looks less likely that Theresa May will trigger Article 50 before her self-imposed, 31 March 2017 deadline,” Hepworth adds. “The likelihood of a general election in 2017 must now be slightly higher, albeit small. May could push for one in theory to gain a larger majority and push through her Brexit view.”
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