Supreme Court Article 50 ‘Brexit’ Appeal Summary

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Day One: 5/12

The first morning began by making an order to protect claimants from physical harm or harassment. The Supreme Court then invited parties to indicate whether they want any Justices to stand down, with the parties universally content with court.

The morning session was about general but fundamental points on the royal prerogative, as the prerequisite of the government’s case that is has the power to use this prerogative when triggering article 50.

Jeremy Wright AG said it is perfectly proper that Claimants should bring the case as a “very important principle of open justice”, and perfectly proper that the Supreme Court should hear it. He also says foreign affairs prerogative is not an ancient relic but a modern necessity, and the imposition by the SC of a precondition (of Parliamentary action) that Parliament itself did not impose upsets a delicate balance.

James Eadie QC on behalf of the government said prerogative doesn’t stem from statute, it is limited by statute, and the continued existence and exercise of prerogative powers is subject to control (implicitly: only) when Parliament chooses to do so. Eadie developed this as part of his written case: (thanks to Jolyon Maugham QC for the tweets on this)

The Supreme Court justices asked a few questions, many of which seemed simple but went to the heart of the government’s case. Lord Sumption asked about the nature of the prerogative power: was it a power to decide things that could change domestic law or something more general?

On the afternoon session; about the relationship between the prerogative and the legislation passed by the UK parliament giving effect to EU law, the government continued to set out its case but it encountered hard judicial questioning.

Day Two: 6/12

On this Tuesday morning the Government continued and finished setting out it’s case on this appeal. The session began with James Eadie QC continuing his adress to the court. His main submissions concerned the legal significance of the 2015 referendum legislation and the importance of the royal prerogative in regard to foreign affairs.

Following on from Mr Eadie was another government minister, the Scottish advocate-general, Lord Keen. Lord Keen, a well-known and successful lawyer, covered the Scottish and Welsh devolution points for the UK government, and his legal argument was rather simple: there were no devolution issues in regard to Scotland and Wales.

The devolution issues in this appeal make the reach of this appeal wider than that of the High Court decision. In principle, a devolution point may turn the case, and therefore the dismissive approach of the UK government to the Scottish and Welsh legal arguments may turn out to be counter-productive.

The appeal continues into the afternoon, with submissions in favour of the UK government from the attorney-general of Northern Ireland, as the Supreme Court is dealing with two reference from Northern Irish courts as part of the appeal. From mid-afternoon Lord Pannick QC, the lead barrister for the claimants in the appeal, those who are seeking a declaration by the court that the government alone cannot just use the royal prerogative to take the UK out of the EU, the whole of parliament needs a say.

Lord Pannick’s submissions were framed very straightforward, and  contended that the Referendum Act 2015 itself did not provide any legal basis for the government to invoke Article 50. His advocacy overshadowed the other submissions made on Tuesday afternoon, which were on the potentially significant issue of Northern Ireland. On behalf of the Northern Irish government, it was submitted that there is nothing in the Good Friday Agreement or any relevant legislation that required primary legislation and the peace settlement would be unaffected by Brexit.

Day Three: 7/12

Lord Pannick continued with his submissions on the Wednesday morning, with the main focus being the relationship between parliament and the referendum result. In particular, the question was posed: what was the legal rather than the political significance of the Referendum Act 2015 and the referendum itself from it, resulting in a vote to leave the EU in June 2016?

For the claimants, the Lord contended that the referendum had no legal effect or at least no legal effect so strong as to limit parliamentary sovereignty or violate fundamental rights. For him there was a balancing act: whatever the significance of the referendum result, it would not be sufficient to outweigh the core doctrine of the sovereignty of parliament, or the principle that rights can only be taken away by express and deliberate provisions.

It could be said to be significant that the Supreme Court justices pressed Lord Pannick on the point of the constitutional significance, if any, of the Referendum Act 2015. The Supreme Court could be said to be approaching the issue with a sense of, to use a legal phrase, anxious scrutiny.

Lord Pannick was then followed by the other claimant lawyer, Dominic Chambers QC. His submissions were about parliamentary sovereignty in general, and about how parliaments and the executive usually deal with treaty-making in detail.  Mr Chambers continued for a short while in the afternoon, and then the case is turned over to the interveners and interested parties, including the Northern Irish parties, and the Scottish and Welsh governments.

Brexit in the context of these two devolved nations raises new and  important legal issues it can be argued, with what happens in respect of both can shape what happens in England. .The submissions by David Scoffield QC (Northern Ireland), Ronan Lavery QC (Northern Ireland), and James Wolffe QC on behalf of the Edinburgh government; mean the Supreme Court judgment will have to range far wider than the narrow issues of parliament versus prerogative. Mr Wolffe said there would have to be formal consultation with Scotland and special legislation, with the representatives of Northern Ireland arguing similarly.

Day Four: 8/12 

On the morning of the final day, the focus shifted to the individuals and their families who may be affected by the consequences of an Article 50 notification. Before this the Lord Advocate were submissions made on behalf of the government of Wales. As with Scotland, the Welsh government argues that its devolution settlement is such that it is not open to the London government to make such a fundamental decision without appropriate legislation and involvement of the devolved government.

Helen Mountfield QC, representing the crowd-funded “people’s challenge” on behalf of various individuals (including Grahame Pigney and citizens of Gibraltar) whose rights would be affected. Ms Mountfield set out how the prerogative powers, which the government argue allow it to trigger Article 50 should not be used to attack such rights. She scathingly compared the government’s arguments from silence on the availability of the prerogative to those who claim that a lack of evidence does not disprove the existence of the Loch Ness monster.

One powerful set of submissions were made by Manjit Gill QC on behalf of EU citizens in the UK. He contended, with evident passion, that such citizens face deportation when Brexit officially occurs.

The final session on the Thursday afternoon was dominated by the government’s reply. To meet the devolution arguments, Lord Keen put forward the view that the devolution legislation  did not stop Westminster and Whitehall from doing as they wished. The rule was merely a self-denying ordinance. Mr Eadie made some strong points on how the Referendum Act 2015 meant that parliament had, in advance, decided no further legislation would be needed.

It does appear that the real reason for this case coming forward is not some clash of grand constitutional principle, but a simple lack of forethought by legislators writing the Referendum Act 2015.

The Court was adjourned with  the judgment likely to be handed down in January. Until then, Theresa Man is bound by the high court declaration and it would be unlawful for her to make the Article 50 notification, and like the rest of us will have to await the decision.

Special thanks to David Allen Green for his commentary in the Financial Times: https://t.co/IhdVRn4Sz5

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The Spectre of Monetarism

On Monday (5/12) I had the privilege to listen to the speech given by the Governor of the Bank of England at the Roscoe Lecture in Liverpool’s BT Convetion Centre, on behalf of Liverpool John Moores University. Sir Jon Murphy; the Chief Constable of Merseyside Police, and the custodian and chair of the Roscoe lectures introduced Mark Carney on this 144th lecture, of the longest public lecture series in the country. He compared the governor Mark Carney to William Roscoe; who has been described as ‘Liverpool’s greatest citizen’ and the founding father of the University, as both men of extraordinary talents. Sir Jon Murphy also talked about saving his pocket money (10 shillings) as a boy for a Subbuteo football game team, and got in a quip about Dr Carney being on the Everton ‘blue’ side while himself a Liverpool ‘red’ supporter, although both have a dislike of Arsenal to bring them together.

Mark Carney spoke about monetary policy and inequality, backed up by data to try and assess what is really going on, and fished with a question and answer session at the end of the hour. He began his speech with “real incomes have been falling for a decade”, with “the legacy of a searing financial crisis weighing on confidence and growth” and a time where “the very nature of work is being disrupted by a technological revolution.” This was compared to the middle of the 19th century, with Liverpool in the midst of a “golden age, where this kind of revolution is changing the nature of work again.

You could “substitute Northern Rock for Overend Gurney; Uber and machine learning for the Spinning Jenny and the steam engine; and Twitter for the telegraph; and you have dynamics that echo those of 150 years ago.”

He set out to discuss during this lecture the role of monetary policy in this time of great disruption, while focusing on the underlying causes and consequences of weak real income growth and inequality across the advanced world.

A recording and a transcript of the lecture including charts on income and growth can be found here: http://www.bankofengland.co.uk/publications/Pages/speeches/2016/946.aspx

Dr Carney focused on three priorities as a way to move forward:

  1. Economists must clearly acknowledge the challenges we face, including the realities of uneven gains from trade and technology.
  2. We must grow our economy by re-balancing the mix of monetary policy, fiscal policy and structural reforms.
  3. We need to move towards more inclusive growth where everyone has a stake in globalisation.

In regard to globalisation “for the societies of free-trading, networked countries to prosper, they must first re-distribute some of the gains from trade and technology, and then re-skill and reconnect all of their citizens. By doing so, they can put individuals back in control.”

He started summing up as with “the MPC (Monetary Policy committee) indicated in the spring that the impact of a vote to leave the EU on inflation would be the product of its impact on demand, supply and the exchange rate, and it stressed then that the implications for monetary policy would not be automatic.”

Dr Carney’s final words before taking questions were: “Whatever economic developments and prospects, the MPC will always set monetary policy to maintain price stability and promote the good of the people of the United Kingdom. As it did when it was the only game in town after the global financial crisis; and as it will going forward, in better balance with fiscal and structural policies. Monetary policy will continue its good work as the UK economy adjusts to new opportunities with Europe and the rest of the world. In the end, monetary policy isn’t a spectre but a friendly ghost.”

The Q&A session was run by LJMU Honorary Fellow, and radio broadcaster Roger Philips. The first question was regarding Liverpool as a strong remain city from the referendum, with the EU helping to create a thriving city; “What can we do to carry on, after our exit from the European Union?” Dr Carney answer touched on the progress that has been made with tourism and retail, “built on the historic strengths of Liverpool”, and entrepreneurs who can think of what is next, who can push the attractiveness of the city without looking to the EU for funds, while mentioning the ‘Northern Powerhouse’ as a way of linking the country.

The Second question was about what would the EU look like in 10 years time? “It will be smaller by one country”, and Euro currency area will have to “take some difficult decisions  to deepen some aspects of integration in those economies”including the labour market, which will be a challenging process in his view. There was a discussion on referendums around Europe, and the challenge of making sure people are skilled for any changes in the job market. Another question on helping the poorest had the answer about keeping “inflation on track”, as deflation leads to debts just building up and up, with a “sweet spot of around 2%” being the best.

The lecture concluded with LJMU vice-chancellor Prof Nigel Weatherill presenting the Governor with a Liver Bird statue, specially created by sculptor and LJMU Honorary Fellow Emma Rodgers.  I felt this had been a well thought out lecture, with a lot to take away and think about as we all move forward with the uncertainties ahead, not just from the referendum result, but cultural and technological changes that affect the monetary system and all our lives.

Mark Carney

The Fightback is Growing

The result in Richmond Park with Sarah Olney of the Liberal Democrats overturning Zac Goldsmith’s 23,015 vote majority is significant, and may lead to a pattern moving forward.

Zac may have said as he stood down from the Conservative Party over the issue of Heathrow Expansion, but  Sarah is also opposed to the third runway, and fought the campaign on the issue of Brexit. The other five candidates including Labour also lost their deposits as they did not receive enough votes, with Ms Olney polling 20,510 votes to Mr Goldsmith’s 18,638. The Conservative Party, UK Independence Party and Green Party did not field candidates, as they felt would further split the votes in favour of the other contender they were furthest from supporting.

I have a lot of respect for Sarah, who only joined the party recently like myself, who feel the country is heading to an uncertain future and being worse of, unless we fight for what we think is right.

After the result was announced she said: “The people of Richmond Park and North Kingston have sent a shockwave through this Conservative Brexit government, and our message is clear – we do not want a hard Brexit.”

“We do not want to be pulled out of the single market, and we will not let intolerance, division and fear win.”

She added that if Article 50; the legal process that sparks Britain’s exit from the EU, is put to a parliamentary vote, she will vote against it. Zac held the opposite view as a Leave campaigner even though over 70% of the constituency voted Remain.

The fightback is definitely on the way, which begun with Liz Leffman’s second place result in Witney after David Cameron stood down, and I can see more shock waves on the horizon next week with the Supreme Court case.