The government announced almost immediately after the High Court’s judgment in Miller v Secretary of State for Exiting the EU was published, on 3rd November 2016, that it would lodge an appeal. True to that promise, one has now been fast-tracked for a four-day hearing starting on 5th December 2016.
In the context of the UK’s constitutional law, the importance of the High Court’s ruling cannot be overstated. It will come as no surprise, therefore, that decision of the UK Supreme Court (UKSC) in the appeal will have colossal significance.
Until the UKSC hands down its judgment, it is impossible to say what the permutations of this case might be for businesses. However, this provides a good opportunity to explain why the appeals process is important and what it entails, using the government’s appeal in Miller as an example.
The Court Hierarchy
In certain circumstances, a court’s decision can be appealed to a superior court. Each court is bound by the decisions of those above it and, to a lesser extent, by its own previous decisions. In civil (as opposed to criminal) law, the lowest court in the hierarchy is the County Court and it is bound by decisions of the High Court, which must in turn follow the Court of Appeal, which is bound only by the UKSC – the highest court in the UK’s hierarchy.
Although the judicial function of the House of Lords was replaced by the UKSC in 2009, its historic decisions remain binding as though they were made by the UKSC. In relation to human rights issues, the UKSC is heavily influenced, but not bound, by the European Court of Human Rights. While the UK remains part of the EU, the UKSC is bound by the decisions of the Court of Justice of the EU, but only with regard to questions of EU law.
Moving cases up the hierarchy by way of appeal is, in a nutshell, how common law is developed. For example, the ability to claim damages for losses or injuries caused by the negligence of others was created in this way. The Miller case is what’s known as a Judicial Review; an examination by the court of whether a public body is acting within its powers. Its appeal will not create any new law but will provide a precedent for future governments by clarifying the existing legal position.
Judicial Reviews always start in the High Court. The importance of Miller meant that the Lord Chief Justice and the Master of the Rolls, who normally sit in the Court of Appeal, were on the High Court’s panel. The case has also fulfilled various criteria allowing it to “leapfrog” the Court of Appeal, so the appeal is directly from the High Court to the UKSC. All 11 judges in the UK’s highest court will sit to hear this appeal, which is something that has never happened before.
Permission to Appeal
A person wanting to make an appeal must first apply for permission to do so. This can be obtained from the court whose decision is being questioned or, if that request is refused, from the court to which the appeal is being made. There are short time limits involved in seeking permission to appeal, so it is important to act quickly once the judgment in question has been made.
Permission will only be granted to cases whose appeal has a realistic prospect of success, or if there is some other compelling reason to allow an appeal. The latter is a broad term but it is generally accepted to mean that the case raises a question of general principle that has been decided for the first time, or that the case raises an important question on which an appeal would be beneficial to the public.
When appealing to the UKSC, a slightly more stringent test must be passed. The case must raise an arguable point of law, of general public importance, which ought to be considered by the UKSC at that time. As Miller relates to an argument regarding the government’s use of prerogative power, in relation to a highly divisive matter of public interest, obtaining permission to appeal was unlikely to be problematic.
Many laws can be interpreted in different ways, so it is important to have a system in place whereby a precedent can be set regarding the correct interpretation. This is particularly true of the UK’s constitutional law, because the UK’s constitution cannot be found entirely within one written document; it is scattered throughout various statutes, cases and unwritten understandings.
An appeal is not a re-hearing. The appeal court can decide only whether the lower court interpreted the law or facts of the case incorrectly, or if there was a serious procedural irregularity in the earlier proceedings. As such, the full arguments placed before the High Court in Miller will not be heard again. Instead, the government must set out how and why the first instance decision was wrong, and Gina Miller will be given the opportunity to respond to that reasoning.
The ground’s for the government’s appeal can be found here. They are lengthy and complex, but there are no questions raised regarding procedure or facts. On the other hand, the appeal relates only to the High Court’s interpretation of the law.
This, in itself, is an important point – like the High Court hearing, the appeal will not consider the merits of the referendum or of Brexit, nor even whether Article 50 can be triggered by the government at all, but the legality of the government’s intended method of doing so; nothing more and nothing less.
The Statements of Case for all involved can be found on the websites of Mishcon de Reya and Edwin Coe LLP, who represent the two claimants.
After the Hearing
As Miller is a matter of UK constitutional law and not EU law, and the European Convention on Human Rights will not be directly affected by the triggering of Article 50, it is very likely that the decision of the UKSC will be final.
Although the hearing will take place from 5 to 8 December 2016, a Judgment is unlikely to be handed down until early in the New Year. The UKSC is fairly progressive, however, and has confirmed that the hearing will be streamed live from: https://www.supremecourt.uk/live/court-01.html, so we can expect plenty of speculation from the press as each side’s submissions are made.
This has only been a whistle-stop tour of the appeals process. When considering an appeal, there is far more to think about, not least of all the potential cost.
The short time limits for seeking permission to appeal, combined with the complexities of deciding whether to do so, mean that it is often best to consider the circumstances in which an appeal might be necessary before the first instance case reaches its final hearing.
If you are thinking about appealing a court decision involving your business, our dispute resolution team may be able to advise you. Please call us on 01772 258321. We have solicitors based in Preston, Lancaster, Garstang, Kendal and Clitheroe.