Judges to rule on Brexit tomorrow

The High Court will deliver its judgment on the Article 50 Brexit challenge tomorrow, Thursday 3 November.

Three senior judges headed by the lord chief justice will read out a summary of their reasons and then publish the full judgment online.

The proceedings will not be televised because Lord Thomas of Cwmgiedd, Sir Terence Etherton and Lord Justice Sales are sitting as a divisional court rather than as the Court of Appeal.

The judges have been asked to decide whether legislation is needed before the government can give notification under Article 50 of the Treaty on European Union of its decision to withdraw from the EU.

The government’s view is that it can use its 'prerogative'—or executive—powers and so there is no need for an act of parliament. That was challenged at a hearing last month and the court reserved judgment on 18 October.

Some observers thought that the government did not do as well as it had hoped during the oral argument. As a result, there is speculation that the court may decide that legislation is required.

That would leave the government with a dilemma: should it appeal or should it put a bill before parliament straight away?

An appeal in this case would almost certainly leapfrog the Court of Appeal and go straight to the Supreme Court. Section 12(3A) of the Administration of Justice Act 1969, inserted by the Criminal Justice and Courts Act 2015, allows a judge to order this if:

• a point of law of general public importance is involved; and
• the proceedings entail a decision relating to a matter of national importance; or
• the result of the proceedings is so significant that a hearing by the Supreme Court is justified; or
• the judge is satisfied that the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal.

The Supreme Court is standing by to hear an appeal on 7 and 8 December. The justices have agreed that all 11 of them will sit if the appeal goes ahead. This avoids any suggestion that a differently constituted court might have decided the case differently.

Normally, the Supreme Court sits in a panel of five to hear substantive appeals. However, seven or even nine judges may sit when the court is considering overturning an earlier decision. Sitting with an odd number of judges avoids the risk of a tie.

Until now, it has been assumed that the government would appeal if it loses in the High Court. But there is increasing speculation in legal circles that the prime minister would not take the risk of being defeated a second time in the Supreme Court.

That court would probably not deliver its ruling before January, leaving Theresa May with relatively little time to get legislation passed before her self-imposed deadline of 31 March.

If she accepts the court’s decision, she could introduce legislation next week.

It’s thought that a bill would be approved by MPs with little difficulty but might run into difficulties when it reaches the House of Lords. Critics of Brexit hope that delays in the Lords would encourage the government to think again.

The more time there is for the bill to go through parliament, the less effective any delaying tactics would be.

Just as Boris Johnson’s policy on cake was “pro having it and pro eating it”, the prime minister might introduce legislation as well as pressing on with an appeal. The case would not be moot until the legislation was passed.

Nobody outside the court has yet seen the judgment and, for now, this is pure speculation. But it won’t be long before we know where we stand.

This article was first published on Facebook. See www.facebook.com/JoshuaRozenbergQC