The Supreme Court’s Ruling on Prerogative Power: how the result might have been different….

Lord Neuberger & his Supremes: 8 v 3

As many expected, the Supreme Court has ruled that the Crown’s prerogative power cannot be used to trigger article 50 & without the sanction of Parliament. The essential reason is that to do so would change domestic law and this is a matter for Parliament.

What is of particular interest is that the appeal was dismissed by a majority of 8 to 3: Lords Carnwath, Hughes and Reed voting in favour of the Government. So if the Supreme Court had sat, as it normally does as a five member Court & also with these three judges, the result would have been the opposite and a win for the Government!

This shows at least four things: (i) how scary the legal process can be, depending upon who sits;  (ii) how right the Supreme Court had been to sit with its full number; (iii) that declarations that the issue is one of law – and therefore apparently only capable of one “correct” result- don’t convey the true picture. As Lord Hughes says at para.281 of the judgment, “clearly either reading [of the legislation] is possible”; and lastly, (iv) either way the appeal went, the public gained in having these important issues clarified, but also went on to lose many millions in the process as they cop the vast legal costs.

Whether you wanted Brexit or not, it is a shame that the Government never thought through the implications at the outset.