Next week the Supreme Court will hear one of the most important constitutional cases of our generation and will decide on whether the Crown can use its prerogative powers to withdrawal the UK from the EU by giving notice under Article 50 of the Treaty on European Union.
All eleven Justices will sit on the panel considering the appeal brought by the Crown. They are appealing the decision of the Divisional Court on the grounds that they erred in their ruling that the Crown has no legal power to commence a withdrawal from the EU Treaties by giving notice under Article 50 of the Treaty on European Union and that the Divisional Court should have ruled that the Crown retains the power to give effect to the result of the EU Referendum, provided for specifically by the EU Referendum Act 2015, by taking the first step in the process.
The Judiciary throughout this case have been the target of much criticism. The High Court’s decision in favor of the campaigners provoked an outpouring of attacks against them with one right-wing newspaper calling them “enemies of the people.” More recently however, the independence of the Supreme Court judges has been called into question leading to debate over whether they should hear the appeal.
Lady Hale received criticism over comments she made in a speech to lawyers in Kuala Lumpar, during which she reflected on the upcoming case. Responding to the criticism, a Supreme Court spokesman said Lady Hale was presenting the arguments from both sides of the article 50 appeal and that ‘it is entirely proper for serving judges to set out the arguments in high-profile cases to help public understanding of the legal issues, as long as it is done in an even-handed way.’
The criticism of Lady Hale was recently followed by that of Lord Neuberger regarding anti-Brexit tweets posted by his wife. Lady Neuberger denounced the referendum as “mad and bad” and re-tweeted a Remain campaign’s article which said it seemed “unlikely that a PM could trigger Article 50 without Parliament’s approval.”
Conservative MPs have called for Lord Neuberger to stand down claiming that his position is compromised.
Jacob Rees-Mogg, the MP for North East Somerset, has stated that it raises the “same question as it did with Lord Hoffmann and the President of the Supreme Court'” in the Pinochet case.
Ms May has however voiced her support for the independence of the judiciary in Prime Minister’s Questions, and maintained the Government was on course to meet its March deadline for triggering article 50 to leave the EU.