When the UK Supreme Court hands down its judgment today at 9.30 am https://www.supremecourt.uk/live/court-01.html the President of the Court, Lord Neuberger, may give the court’s opinion himself or he may select one of his fellow Justices to explain the judgment on behalf of the Court.
The oral delivery will reiterate the essential facts and issues and the distilled arguments of Counsel and then offer the Court’s determination as to the correct legal position in light of their assessment of the merits of the various legal arguments presented in debate through early December 2016. The Court will then adjourn.
The explanation of the Court’s judgment is likely to last several minutes – possibly noting the progress of the matter through the Queen’s Bench and, most importantly, the UK Supreme Court’s determination as to which arguments and on which issues have proved persuasive – the Respondents’ (Miller, Dos Santos and interveners) or those of the Appellants (the UK Government).
One of the justices will have written the lead opinion and there may well be written concurring judgments providing scope for some individual nuances within a determination with overall coherence.
There may be an indication as to which Justices have, seriatim, provided the Court’s reasoning in written form relating to the various arguments raised in debate. Professor Alan Paterson’s leading text book on the UK Supreme Court (Final Judgment: The Last Law Lords and the Supreme Court, 2013) sets out (p.95), amongst other illuminating information on the practice of the Supreme Court, a table of Justices’ written judgments between 2009-13.
For instance, one of the two Scottish judges will likely provide a judgment providing a specialized response to the Lord Advocate’s submissions relating to scope for a Holyrood legislative consent motion. The two Scots Justices are, almost undoubtedly, likely to concur on the issue along with other Justices – very possibly unanimously – holding, it seems very probable, that the Advocate General’s counter arguments, on behalf of the UK Government, have been most persuasive on the point.
While the Court may, in terms, expressly restate the Separation of Powers and the proper and respective functions of Judiciary, Legislature and Executive (possibly using one or both terms explicitly) it will be interesting to see if there may be any view as to the degree of Parliamentary scrutiny that might be deemed appropriate in light of the Government’s intervening pronouncements. Might scope for a White Paper be mentioned?
The recent (January 2017) UKSC judgment in Ramatullah (No.2) relating to the narrow definition applied to the Doctrine of Crown act of state (albeit in that instance the judgment operating in the Government’s favour) might, logically and consistently, it could be argued, be mirrored in a similarly narrow definition of Crown Prerogative in the context of the Brexit case (yet in that instance not in the Government’s favour).
The UKSC website states that the judgment is to be published in its authoritative, detailed and written, form, “on the Supreme Court website as soon as the judgment summary has been delivered”.
UK Supreme Court Website:
https://www.supremecourt.uk/index.html