The supreme court is due to deliver its eagerly awaited Brexit judgment declaring whether ministers or parliament have legal authority to approve the UK’s departure from the European Union.
At 9.30am on Tuesday, the court’s president, Lord Neuberger, will read out a carefully crafted summary of the decision. Lawyers for the main parties will have been shown the judgment an hour and a half earlier. Close scrutiny of senior barristers’ and solicitors’ expressions as they gather in court may provide a preliminary hint of the judicial outcome.
The brief proceedings will be televised. The statement read out by Neuberger is expected to last only five minutes. The full judgment will be put online by the supreme court at about 9.35am.
The ruling by the 11 justices will resolve whether the government, through its inherited use of royal prerogative powers, can formally initiate article 50 of the Treaty on European Union (TEU) without the explicit approval of MPs and peers.
Article 50 begins the process of the UK’s withdrawal from the EU. If a majority of justices decide, as is widely expected, that parliamentary support is required, then the judgment could specify that legislation is needed.
The panel of 11 justices is the largest ever assembled for a single case since the law lords were created in 1876. Such judicial mass mobilisation is recognition of the constitutional significance and political sensitivity of the hearing. The court normally sits in panels of five – an odd number is always required to ensure there cannot be a tie.
Given that there could be separate dissenting and concurring decisions by individual justices, the full document could easily run to more than 100 pages.
The lead claimant in the supreme court case is Gina Miller, an investment manager. Miller, who says she has received death threats, argues that her case is about asserting parliamentary sovereignty and not an attempt to reverse Brexit. Another claim was brought by Londoner Deir Dos Santos.
Popular expectations have been better managed than they were before the government’s surprise high court defeat. Ministers have signalled that they expect to lose.
Last time, the Daily Mail condemned the three high court judges who found against the government, including the lord chief justice, Lord Thomas of Cwmgiedd, as “enemies of the people”.
Any attacks by the media on the independence of the judiciary are expected to be more muted this time. Theresa May has already conceded that parliament will eventually be given a vote on the final shape of any Brexit deal.
Nonetheless, the judgment represents a significant moment in the supreme court’s growing constitutional status. Departure from the EU, which involves extracting the UK from the jurisdiction of the European court of justice in Luxembourg, will further enhance the authority – and workload – of Britain’s most senior judges.
Lord Hope, the retired president of the supreme court who previously sat as Scotland’s highest judge, said it was a “complete misconception” that the judges were being asked to block the democratic will of the people.
“The judges are not disturbed by that individually but they are concerned about the respect for the system because our country relies on the rule of law and respect for the law is absolutely crucial,” he told BBC Radio 4’s Today programme.
Hope said the ruling on whether the devolved administrations were required to give consent was an equally crucial constitutional matter. “They have a consent process, whether that operates here [in the case of Brexit] or not has never been tested before so it’s important it should be decided,” he said.
Hope, who now leads crossbench peers in the House of Lords, said any future vote in the Lords and Commons would be crucial. “I think the government’s view is it should be a very short bill which they hope will not be amended, if it is amended then other questions will be raised. But I think the government will want to exclude amendments.”
