UK Supreme Court hears landmark challenge to Brexit plans

Gina Miller arrives at court over the government’s bid to trigger Brexit plans without parliamentary debate. Daniel Olivas / AFP

LONDON // Britain’s top judges vowed on Monday to consider with impartiality the contentious question of who has the power to trigger the UK’s exit from the European Union — the government or parliament.

The Supreme Court justices acknowledged that strong feelings have been aroused over how and whether to leave the EU. It also has major constitutional implications for the balance of power between the legislature and the executive.

The court’s top justice, David Neuberger, opened a four-day hearing by condemning the “threats of serious violence and unpleasant abuse” directed at Gina Miller, one of the claimants trying to ensure parliament gets a say.

“Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law,” Judge Neuberger said, banning publication of the addresses of Ms Miller and other parties in the case.

Judge Neuberger and 10 other justices at the country’s top court must decide whether prime minister Theresa May’s government can invoke Article 50 of the EU’s key treaty, the trigger for two years of divorce talks, without the approval of MPs.

Ms May plans to trigger Article 50 by the end of March, using centuries-old government powers known as royal prerogative. The powers — once held by the monarch but now used by politicians — enable decisions about joining or leaving international treaties to be made without a parliamentary vote.

Financial entrepreneur Ms Miller and another claimant, hairdresser Deir Dos Santos, went to court to argue that leaving the EU would remove some of their rights, including free movement within the bloc, and that should not be done without parliament’s approval.

Last month, three High Court judges agreed. But the government says they have misinterpreted the law.

Opening the government’s arguments, Attorney General Jeremy Wright said the use of prerogative powers did not undermine parliament, because the legislature had been in the driver’s seat throughout the referendum process.

He said MPs had passed the European Referendum Act of 2015, laying out the rules for a referendum on EU membership, in “universal expectation ... that the government would implement its result.”

Mr Wright said the government wasn’t using prerogative powers “on a whim or out of a clear blue sky” but as the result of a process in which parliament had been “fully and consciously involved.”

“When it comes to leaving the European Union, parliament has had full capacity and multiple opportunities to restrict the executive’s ordinary ability to begin the Article 50 process and it has not chosen to do so,” Mr Wright said.

Though the courtroom drama is unfolding in cool legal language, it has set public passions simmering.

November’s ruling infuriated pro-Brexit campaigners, who saw the legal challenge as an attempt to block or delay Britain’s EU exit. The anti-EU Daily Mail newspaper labelled the justices “enemies of the people” and suggested some held Europhile views that compromised their impartiality.

Judge Neuberger told a courtroom packed with scores of lawyers, journalists and members of the public that all sides in the case had been asked whether they wanted any of the justices to step down. He said that “without exception,” none had any objections.

A handful of pro- and anti-EU demonstrators rallied outside the court building on London’s Parliament Square as the case began. Ms Miller — who has received a torrent of online abuse for her role in the case — arrived with her lawyers to cheers from pro-EU campaigners dressed as judges atop an open-topped double-decker bus.

Former UK Independence Party leader Nigel Farage had vowed to lead a march on the Supreme Court to demand judges respect the will of the majority. It was cancelled last week after organisers said there was a risk it could be hijacked by far-right extremists.

In a reflection of the constitutional importance of the case, all 11 Supreme Court judges are hearing the appeal, the first time the full court has sat since it was founded in 2009. They are likely to give their ruling in January.

*Associated Press