The Hearing

BY JAMIE FOSTER

Today the Supreme Court begins its hearing of the Brexit Challenge originally brought in the High Court by Gina Miller, a fund manager whose wealth has allowed her to ensure that the Courts review the lawfulness of the Government using prerogative powers to trigger Art 50. The Media has portrayed this case as a battle between unelected judges and the voting public. As with all deflection one must look past this distraction to the hidden truths crouching in the background.

Legal commentators who either openly identified as ‘Remainers’ or hid their passion behind the grey mask of ‘Independence’ have mocked the Government’s case in the run up to this hearing. Concerned ‘Brexiteers’ have wondered loudly whether the learned men and women sitting on the  Supreme Court benches can put aside the natural tendency of those who benefit from any status quo and find on facts and law. It will be a remarkable opportunity for the highest tier of the UK judiciary to demonstrate that most impressive of judging skills: the ability to put passion aside and rely on forensic intellectual rigour.

As I set out here Lord Pannick had an excellent day in the High Court. He dazzled with an argument that essentially boils down to a claim that Parliament passed the 1972 ‘European Communities Act’ which subsequently granted developing EU rights to UK subjects. The argument is a highly technical version of ‘that which……. [the Commons, approved of by the Lords] giveth, only…….[they] can taketh away.’

One of the flaws in this miraculous sophistry has already been identified by Cambridge Law Professor, Professor Mark Elliot, of Cambridge University. He argues persuasively that the legislation which Parliament enacted granted UK subjects EU rights only for as long as the UK remained a member of the EU. The point being that Parliament created nothing of permanence; it merely acceded to the UK joining the EC, which had already happened through use of prerogative powers.  So nothing given to take away, merely a set of rights lent as a perk of EU membership. No real surprises there.

The Government has put forward a bill to ensure that all EU rights (apart from the right to sit as an MEP and the right to travel freely through the EU without let or hindrance), are brought into UK law in any event. So Gina Miller’s champions are arguing that the Supreme Court should take a highly pedantic approach to the principle that Parliament’s will cannot be overborne by the Executive, even though in reality it wouldn’t be.

This ‘Remainer’ argument is set against the backdrop of the consistent complaint that ‘the people’ were lied to by the Leave campaign and didn’t know what sort of escape from the stifling and autocratic EU bureaucracy we wanted. The barefaced hypocrisy that underlies this argument was brought into sharp focus when Nick Clegg was interviewed by the great Andrew Neil on the Sunday Politics. Like Gina Millar, Mr. Clegg claims to respect the democratic will of the people, but, when grilled on what his version of ‘soft Brexit’ (a phrase as risible as soft verge must be to French lorry drivers) might look like, the democratic mask slipped.

Mr. Clegg wants continued membership of the single market; the UK to continue to pay the EU Danegeld and to be grateful for scraps from the table in return; free movement; a EU court, (although he appears somewhat confused as to which one) to remain supreme on matters affecting UK disputes; and for us to remain in the customs union. Brillo asked whether the Lib Dems, on that basis, should change their name to the Libs. Personally I would advise they change their name to something containing references to neither democracy nor liberalism. The effect of Mr. Clegg’s preferred escape route would be to leave us in the EU but with no pesky UK MEPs or other decision makers to get in the way of the grand European project.

Given the weight of real expert opinion on this case I shall, for the sake of my conscience, put in my ha’porth. You will forgive me, Dear Readers, if I set out an excerpt from the 1972 Act. Try reading until a lightbulb goes off:

(2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision—

(a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised ; or

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above ;

and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid. In this subsection ” designated Minister or department” means such Minister of the Crown or government department as may from time to time be designated by Order in Council in relation to any matter or for any purpose, but subject to such restrictions or conditions (if any) as may be specified by the Order in Council.

For those more enthusiastic young lawyers who may be interested in the musings of a country solicitor, my eyes popped out at (2)(a). This gives Her Majesty the power to ensure that EU obligations are implemented.

Article 50 places an obligation on the UK to inform the European Council of our intention to leave. Such intention was clearly formed and expressed in the referendum. The obligation to inform the EU is mandatory. A state must inform, it is not a question of may. Article 50 provides a power for the Government, using prerogative powers, to implement this obligation.

I look forward to the Supreme Court’s view but, in my humble opinion, this provides a hurdle that even the gallant and talented Lord Pannick will have trouble leaping. It will be fascinating to read the judgments of the noble Lords and see to what extent they are willing to protect, not only the independence of the judiciary, but also of the UK in their reading of the law. We live in interesting, if highly litigious times.

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8 thoughts on “The Hearing

  1. The case is specific and unique to a particular once in a generation constitutional issue ie to decide how to “trigger” Article 50 notification in accordance with “our constitutional requirements”. That is why we have the unprecedented sight of 11 Law Lords sitting, and those of us who subscribe to constitutional law and barrister’s blogs are being overwhelmed by a veritable tide of contrary legal opinions, so that even if you have studied constitutional law it makes for very heavy reading and thinking.

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  2. This case is important well beyond the process of starting our negotiations with the EU. Because if Miller prevails, it creates a precedent which, potentially, increases substantially the limits on the exercise of prerogative powers. That could gum up first the courts and then Parliament with hundreds of cases seeking to require Ministers to secure specific Parliamentary approval to measures they have until now dealt with through the exercise of the Royal prerogative.

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  3. My own limited view on this is that there are many against leaving the EU and with their wealth they are going to tie us all up in delays and then in parliament there will be substantial delays plus on top of that there is Art127 etc. If you suggest to this bunch we’ll let’s have a rerun BUT this time no untrue statements from either side of campaign they immediately say oh no as they know the vote to leave would be a massive majority and of course it would not be fudged as advisory. There best option is to go down this so called legal route and wear us all down with more MSM control and corporate structures advising that it is all in our best interest

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  4. Nice one Jamie. Obviously you are feeling better. The legal arguments are on your side but we shall have to wait and see whether the Supreme Court is.

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  5. Firstly, in no way is Gina Miller’s case an embarrassment, the only embarrassment is the seeming lack of knowledge and understanding of the EU, and what was until recently the distinctly “unsexy” subject of Constitutional Law that is so evident amongst so many. Obviously JF is a learned exception. Secondly, I have read or tried to read the academic legal blogs and barrister’s chambers opinions relating to this case as well as the transcripts; at 70 yrs of age and long retired from a career in perhaps the more everyday pragmatic regulatory and consumer protection legal areas, I must admit that it is very heavy going, but I believe that those 11 “Leaping Lords” will uphold the High Court decision, and doubt that decision will delay the notification process by much, and it will be delivered on the 1st April 2017.

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  6. Before the high court case I thought like most, that the government could win it’s case if it wanted to. They didn’t bring out the strongest arguments and lost it. I am not convinced they will win on appeal either. The more interesting question is whether they can maintain that an article 50 notification can’t be revoked, and whether they can continue the argument that knowing the answer to that definitively isn’t necessary for judgement to be given. I suspect that if it is possible to withdraw a notification then this case would either be not justiceable, or perhaps it would have the same verdict but for different reasons. I am not entirely clear that this meets the bar of being necessary where the court shall refer the question to CJEU. If it is unclear whether this should be referred then we get a double trip to CJEU, first under article 267 to see whether this meets the necessary bar, then back to CJEU to see whether article 50 can be withdrawn. I suspect they will bundle both questions together for efficiency rather than doing the whole referral process twice.

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  7. Gina Miller’s case is an embarrassment. It makes 48% of the UK look like whining losers. I voted Remain. I am embarrassed by her actions. I hope this case gets drop-kicked out of Britain and into the sea, frankly.

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