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:


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