LONDON Dec 3 Prime Minister Theresa May's
government launches a challenge on Monday against a court ruling
that it requires parliamentary approval to start the process of
leaving the European Union, a decision that could upset
Britain's Brexit plans.
If the Supreme Court, the United Kingdom's highest judicial
body, dismisses the government appeal it could derail May's
timetable for triggering Article 50 of the Lisbon Treaty and
leaving the EU.
The government's legal fight comes against a backdrop of
claims by some politicians and newspapers that establishment
judges want to thwart the Brexit process.
It will be the most high-profile and complex case the court
has considered since it came into being seven years ago and is
due to last for four days. For the first time all its 11
justices will sit on the panel with the verdict due later in
"The case raises difficult and delicate issues about the
constitutional relationship between government and parliament,"
Brenda Hale, the Supreme Court's Vice-President said in a speech
"What is meant by the exercise of the executive power of the
state? We do not have a written constitution to tell us the
answer. But I doubt whether many written constitutions would
tell us the answer either."
If May wins, she can proceed with her plans to invoke
Article 50 by the end of March.
But if she loses, parliament could in theory block Brexit as
most lawmakers (MPs) supported staying in the EU in a referendum
in June, though few observers expect such an outcome. Even so,
lawmaker approval could open the process to greater scrutiny and
Investors believe the greater parliament's involvement the
less chance there is of a "hard Brexit" in which tight controls
on immigration are prioritised over European single market
access. The pound surged after November's High Court ruling.
In a sign of how thorny the process could be for May, the
pro-EU Liberal Democrat party says it would vote against Article
50 unless there is a new referendum on the final Brexit deal, a
concession May is highly unlikely to make.
The party won a ninth seat in parliament on Thursday in a
local by-election vote.
The High Court challenge was brought by investment fund
manager Gina Miller with hairdresser Deir Tozetti Dos Santos the
Other parties will also be allowed to offer legal arguments
this week, including the devolved Welsh government, a group of
ex-patriate Britons, and the Independent Workers Union of Great
Britain which represents mainly low-paid migrant workers.
So too will the Scottish government, which strongly opposes
Brexit and has been seeking ways to keep Scotland in the
The case hinges on whether the government can use a
historical power known as "royal prerogative" to invoke Article
50 without lawmakers' assent.
The challengers argued that Britons would inevitably lose
rights granted under an act of parliament when leaving the EU,
and that under Britain's unwritten constitution such rights
could only be taken away with parliamentary approval.
The High Court agreed with this, rejecting the government's
assertion parliament had given its approval by allowing a
referendum and that it was established the executive alone could
make or leave international treaties.
The government's prepared argument for the Supreme Court is
little changed from before. Miller has told Reuters she
suspected May might be happy to lose, with the court battle
providing a useful distraction to ministerial divisions and
June's vote to leave the EU exposed deep divisions in
Britain, and some pro-Brexit politicians condemned the High
Court for flouting democracy. The Daily Mail newspaper called
the three senior judges involved "enemies of the people".
Miller herself has become a target of hate and has received
abuse and death threats.
Some lawmakers in May's Conservative Party have also called
for Supreme Court President David Neuberger to stand down
because his wife had posted anti-Brexit messages on Twitter.
One of the court's justices, Brian Kerr, said judges would
not be swayed by personal views.
"That's not to say we don't have personal views, but we are
all extremely conscious of the need to set aside our personal
views and apply the law as we conceive it to be," he told the
BBC last month.
Meanwhile, upsetting the media, politicians and some of the
public is unlikely to faze Neuberger and the other justices.
"Parliament no doubt appreciates that the unelected judges
sometimes are more easily able to do what is right, but
temporarily unpopular, than politicians who need to submit
themselves at least every five years to the electorate,"
Neuberger said in a 2011 speech.
(Editing by Richard Lough)