The Attorney General will today warn the Supreme Court judges that they must not defy the “will of the electorate” as the Government lodge their Brexit legal challenge.
The highest court in the land is being asked to overturn a High Court ruling that the Prime Minister must seek MPs’ approval to trigger the process of taking Britain out of the European Union.
In a decision that infuriated Brexiteers, three senior judges said Theresa May lacked power to use the royal prerogative to trigger Article 50 of the Lisbon Treaty and start the two-year process of negotiating Brexit without the prior authority of Parliament.
Now 11 Supreme Court justices - a record number to sit on an appeal - will have their say regarding one of the most important constitutional cases in generations.
Attorney General Jeremy Wright will also warn the judges that they must not “stray into areas of political judgement” when making their ruling and must “resist” intervening in a matter of significant “political sensitivity”.
According to The Telegraph he will say that people who voted for Brexit did so on the “clear understanding” that the Government could make that happen without “further approval of Parliament in yet further primary legislation”.
Wright is expected to open the hearing by highlighting the fact that 17 million people voted for Brexit on the understanding that the Government would then use its Royal Prerogative to implement the vote.
In a written submission to the court following an intervention in the case by Scottish First Minister Nicola Sturgeon, Wright reportedly warned: “The Court is being invited by the Lord Advocate and the Counsel General to stray into areas of political judgment rather than legal adjudication. The Court should resist that invitation, particularly where the underlying issue is one of considerable political sensitivity.”
He added: “The premise of the 2015 [referendum] act was the continued existence of the Government’s prerogative powers to act on the international plane - including, specifically, to give Article 50 notice as the first step to implementing a “leave” vote. That was the clear understanding of all concerned and the basis on which people voted in the referendum.”
According to The Telegraph he also warned that the court’s decision could lead to Parliament “micro-managing” all of the UK’s future treaty negotiations.
Wright’s remarks caused alarm online with some commenters suggesting telling judges to “ignore the law” was “unsettling”.
But Shadow Attorney General Baroness Shami Chakrabarti told the BBC’s Today programme that the Supreme Court challenge was not about “judges second guessing the people”.
Chakrabarti said having read the High Court decision on Brexit “it is very clear to me that it has been completely hyped in some parts of the media. This is about process, it is not about outcomes.”
She added: “This (the Supreme Court challenge) is not about the people versus the judges, if anything it is about the Government, the executive, or parliament... who of those two institutions of the state should be overseeing this matter of triggering Brexit.”
Chakrabarti said it was “incredibly important” that the Supreme Court decision did not lead to criticism of the judges involved like that seen following the High Court decision which led to the Daily Mail referring to one judge as “openly gay”.
“It is incredibly important that we don’t see the kind of scrutiny, verging on vilification, of the judges that we have seen in recent weeks,” she said.
Over the weekend it was reported that Wright said the High Court judges had consigned the EU referendum result “almost to a footnote”.
If the Supreme Court appeal is unsuccessful, and any potential further appeal to the European Court of Justice in Luxembourg also fails, the Government’s plans for Brexit could be thrown into disarray.
But May has made it clear she still intends to give an Article 50 notification by the end of next March to start the leave negotiations with 27 other EU countries.
Brexit Secretary David Davis is leading the Government’s historic legal action. His team of lawyers, headed by Attorney General Jeremy Wright, will argue in the four-day hearing that the three High Court judges erred over Article 50 and its use was legally justified by the June 23 referendum vote in favour of quitting the EU.
Lord Thomas, the Lord Chief Justice, gave the ruling blocking the use of Article 50. Two other top judges - Master of the Rolls Sir Terence Etherton and Lord Justice Sales - agreed.
Even though it was emphasised to a packed court in London that they were deciding “a pure question of law” and not expressing any view about the merits of leaving the European Union, they faced fierce criticism from Leave campaigners and an accusation that they were “enemies of the people”.
Against that background, the Supreme Court has already stressed that its judges will only be concerned with questions of law and not making political decisions.
The Scottish and Welsh governments and the Attorney General for Northern Ireland are all intervening in the case.
Scotland’s Lord Advocate James Wolffe QC is to argue that it would be unlawful for the Article 50 process to start without a legislative consent motion (LCM) from Holyrood.
The High Court ruling was won by Gina Miller, 51, an investment fund manager and philanthropist who was selected to bring the lead case.
She reported that her high-profile role had led to death threats and she had spent £60,000 on security, but she is returning to the battle represented once more by Lord Pannick QC.
Her case is being supported by “concerned citizens” drawn from all walks of life, including London hairdresser Deir Dos Santos, 37, who helped start the legal battle over Brexit but, say his lawyers, has been forced underground after receiving “vile” hate mail.
The Attorney General has also said of the government’s case: “The country voted to leave the European Union in a referendum provided for by an Act of Parliament.
“The Government is determined to respect the result of the referendum. The Government’s case is that it does have legal power to trigger Article 50 on the timetable set out by the Prime Minister. We do not believe another Act of Parliament is necessary.”
Counsel General for Wales Mick Antoniw said: “The people of the UK voted to leave the European Union. I respect that decision and we will not work against the referendum result.”
He said: “Leaving the EU will lead to significant changes to the devolution settlement in Wales – only the UK Parliament can make those changes, which should be with the agreement of the National Assembly for Wales.”
The Welsh Government’s legal team “will argue that the judgment of the High Court should be upheld, and that an Act of Parliament is required for the UK Government to give notice under Article 50”.
Good Morning Britain reporter Clodagh Higginson today tweeted a picture of people queuing outside the Supreme Court hours before the hearing was due to get underway.