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Supreme court Brexit hearing: 10 things we learned

Thursday 8 December 2016

1 What the royal prerogative is

Fundamental to the government case is this prerogative conferring ancient royal powers, including to make treaties, on politicians. The government argues that it is these powers that allow ministers to trigger article 50 without parliamentary legislation.

2 The government could have saved itself a lot of trouble if it had legislated for what would happen in the event of a vote for Brexit

The European Referendum Act 2015, which determined that a vote would take place, was silent on what would happen next. By contrast, legislation on the 2011 alternative vote referendum obliged the government to change the law accordingly if a “yes” vote occurred.

3 Contrary to what some would have us believe, the supreme court justices are not intent on defeating the will of the people

Two justices, including the court’s president, Lord Neuberger, even suggested that the parliamentary motion – subsequently carried – to trigger article 50 might preclude the need for legislation. Lawyers for the respondents insist that an act of parliament is necessary.

4 The case has highlighted the importance, in the absence of a written constitution, of the supreme court

As well as interpreting the scope of the royal prerogative, it is being asked to tackle questions about the devolution settlement.

5 Interpreting law can be as much about what it does not say as what it does say

The government contends that because the European Referendum Act 2015 made no provision preventing the use of its prerogative, it follows it can use it to trigger article 50. But the other side claims that because there was nothing in the act about the legal effect of the referendum, it was only advisory and so parliamentary legislation is required.

6 Scotland is not seeking to veto Brexit

James Wolffe QC, the lord advocate representing the Scottish government, confirmed this. But given the impact on Scottish citizens, he said the UK government should seek a legislative consent motion from Holyrood, which requires the Scottish parliament to approve any changes in its powers and responsibilities.

7 What a Henry VIII clause is

This is a provision added to a bill to enable ministers to repeal or amend it after it has become an act of parliament. Article 2(2) European Communities Act 1972 allowed ministers to amend UK law to comply with EU acts.

8 Constitutional law does not make great television

As befitting such an important case, both Sky and the BBC broadcast most of the opening day’s proceedings on their news channels but coverage tailed off as the case progressed. Intricate legal argument, arcane vocabulary and historical precedents have not proved to be riveting viewing.

9 Lawyers have a special kind of humour

There was much mirth over the pronunciation of De Keyser, the most important historical case on the royal prerogative, which culminated with Lord Pannick QC quipping: “You say De Keezer, I say De Kaiser.”

10 And they are not averse to making sartorial statements

Lord Sumption wore a piano keyboard design tie on one day and on another a colourful 2012 Olympic Team GB tie, interpreted by some as a reassurance of his patriotism or a gesture of support for the master of the rolls, Sir Terence Etherton, formerly an Olympic fencer, one of three high court judges branded “enemies of the people” by the Daily Mail.

From the royal prerogative and Henry VIII clause to what makes lawyers laugh – and how to interpret a judge’s choice of tie

Lord Sumption
Lord Sumption wore a piano keyboard tie on one day of the hearing, and an Olympic Team GB tie on another. Photograph: Supreme Court/PA




March 2023

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