Brexit legal challenge – Supreme Court, London (update: Gov loses 8-3)

The Brexit legal challenge (note: the Wikipedia page has many links to written arguments & transcripts) (references UKSC 2016/0196 & court materials) is one of the most important UK court cases in our time. Thanks to Open Justice, the proceedings have been broadcasted Live (see links below).

I’ve linked the full video clips below. And you can download and read the draft Supreme Court PDF transcripts: Day 1, Day 2, Day 3, and Day 4. (note: Lower court judgment appealed: [2016] EWHC 2768 (Admin))

Legal submission video links (with approx. time code references): *) submission by Jeremy Wright, QC (The Attorney General for England and Wales); *) submissions part 1 & part 2 & part 3 by James Eadie QC (First Treasury Counsel (Common Law) or “Treasury Devil”, the government’s independent barrister on legal issues of national importance); *) submission by Richard Keen QC (Advocate General for Scotland); *) submission by John Larkin QC (Attorney General for Northern Ireland) (interesting noteworthy news)

Legal submission video links (with time codes): *) submission part 1 & part 2 by Lord Pannick, QC for the respondent Ms Gina Miller; *) submission by Helen Mountfield, QC (counsel for the crowd funded People’s Challenge) (via Guardian “Helen Mountfield QC’s written arguments which relate to the issue of EU citizenship and related rights can be found here.”) (twitter);

UK Guardian Live detailed (as it happened) report: Day 1Day 2, Day 3, and Day 4. Worth a read: “Supreme court Brexit hearing: 10 things we learned“.

Brexit legal challenge: Watch live from court (Day 1 – Streamed live on Dec 5, 2016)

Brexit legal challenge: Day two live from court (Day 2 – Streamed live on Dec 6, 2016)

Brexit legal challenge: Day three live from court (Day 3 – Streamed live on Dec 7, 2016)

Brexit legal challenge: Day four live from court (Day 4 – Streamed live on Dec 8, 2016)

Reference articles:

Dec 6th, 2016 Guardian, “Supreme court justices tamed in face of a Pannick attack – Gina Miller’s barrister gives Treasury Devil and other QCs a lesson in taking the floor and keeping it at an article 50 hearing

“I think you’ve just given two diametrically opposed answers to the same question in the last five minutes,” observed Lord Sumption. As Eadie, aka the Treasury Devil, had only been back on his feet for less than 20 minutes, this wasn’t the best of starts.

“We’ll have to look back through the transcripts and see which one we agree with then,” Lord Carnwath added, not altogether helpfully.

“I see,” said Lord Neuberger, trying to be kind. “We had better let you proceed with your argument.

“I will try not to give two inconsistent answers in the next five minutes,” Eadie said dolefully. He’d never wanted this appeal and just going through the same points that the divisional court had dismissed last time out was doing nothing for his self-esteem. Trying to make the best of a bad job, wasn’t his usual style.

He began to fumble and lose his way. When he reached the point of double taxation in his submissions, he just decided to give up the unequal. The justices might understand the law but he didn’t and he’d only end up giving more wrong answers. “Because of time,” he said, “I’ll pass on this.” It wasn’t quite the slam dunk finale he’d been hoping for.

Next up was Lord Keen for the Scots. Or rather not for the Scots. Scotland’s advocate general gives every impression of believing devolution has only ever been a chimera and that the Westminster parliament pulls all the strings. “I’m going through this at the rate of knots,” he said, breathless in a way that only a tortoise could ever know. Glaciers move more quickly than Lord Keen. There seems to be a significant timelapse between him having a thought and it getting uttered.

Interesting read indeed.

Very useful copied from this Supreme Court materials page:

//Written arguments (or ‘cases’) of the parties and interveners

Here we link to the parties’ written arguments, where available online. As the advocates will rely heavily on these documents, they are a helpful resource to read alongside watching the proceedings. We will update this as more papers become available.

Appellant

Secretary of State for Exiting the European Union

Supplementary: Secretary of State for Exiting the European Union (devolution issues)

Respondents

The Queen on the application of

  1. Gina Miller
  2. Deir Tozetti Dos Santos
Interested Parties
  1. Graham Pigney and others
  2. AB, KK, PR and children
Interveners
  1. George Birnie and others
  2. The Lord Advocate (Scottish Government)
  3. The Counsel General for Wales (Welsh Government)
  4. The Independent Workers Union of Great Britain
  5. Lawyers for Britain Limited

//

P.S. By the way, BBC News posted an insightful and brief post (with video clips) about 11 Supreme Court judges that are ruling on UK’s Brexit appeal. (note: Worth a watch of this 2010 BBC video interview of Lord Sumption and this 2013 brief video interview of Deputy president Lady Hale.)

Dec 12, 2016 Update: Words and decisions of Lord Bingham were quoted and referenced in this case. Here is UK Guardian’s “Lord Bingham of Cornhill obituary” when he passed away in 2010. Book review “The Rule of Law by Tom Bingham“.

Jan 18, 2017 Update: Guardian, “Supreme court to deliver Brexit ruling on 24 January

“Draft versions of judgments are often circulated to parties involved in a case several days beforehand. Government sources have already signalled that they expect to lose the main point of their appeal and have begun drafting versions of a bill to put before parliament approving Brexit.

Fair Deal for Expats is one of the claimants in the case. Its chairman, John Shaw, said: “Fair Deal for Expats eagerly awaits the judgment of the supreme court. [Our] members have been involved in this case from the outset, standing up for the 2 million British people who live in other EU countries. Many of them were not allowed to vote in the referendum, yet they count among those most profoundly affected.

“It’s of the utmost importance to those people that a proper debate takes place in parliament about their future and they’re not sidelined in a rush to give notice under article 50, without knowing what the future holds for them. We hope that the government ensures that it does everything it can to protect British citizens in the EU and their families, whatever the outcome of the case.””

Jan 19, 2017 Update: We will soon see what the Supreme Court of UK ruling is and if a one line Act will be enough. Quoting Lady Hale (Deputy President of the Supreme Court) in her speech The Supreme Court: Guardian of the Constitution?” (PDF), Sultan Azlan Shah Lecture 2016, Kuala Lumpur, delivered on 9 November 2016.

Another question is whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.”

The key words being “comprehensive replacement“. I don’t know. We will see.

Jan 23, 2017 Update: BBC News, “Brexit: Supreme Court to announce judgement“, //Note: The full court ruling will then be published on the Supreme Court’s website.//

Jan 24, 2017 Update: Guardian, “Brexit: government will introduce article 50 bill ‘within days’ following supreme court ruling – as it happened” (note: “Six things we’ve learnt from David Davis’s statement on the article 50 judgment“)

//”Six things we’ve learnt from David Davis’s statement on the article 50 judgment

Here is the full text of David Davis’s statement to the Commons about the article 50 judgment. But, as is often the case on these occasions, the most interesting material came in what he said in reply to MPs, and in what MPs said to him, not in the opening statement.

3 – Ministers will produce an article 50 bill soon – but not quite as quickly as some were expecting. Davis said that the bill would be published “within days”. At one stage there was speculation that ministers would rush it through the Commons like emergency legislation, and there has even been talk of all-night sittings, or sittings at the weekend. But today Davis was not able to give any details of when the bill will be debated. We will probably learn more when David Lidington, the leader of the Commons, gives his business statement on Thursday, Davis suggested. Davis also said he would allow proper time for MPs to debate the bill at committee and report stage. Ministers are moving quickly, but not with the intense urgency some were expecting.

4 – Ministers have abandoned the forecasts the Treasury made before the referendum about the economic cost of leaving the single market – and the Bank of England’s Andy Haldane has given them the cover they need to do this. Davis revealed this in answer to a question from Labour’s Owen Smith. (See 1.49pm.) This is significant because another Labour demand may be for the publication of economic impact assessments about the cost of leaving the single market. If those Treasury documents do not repeat what the Treasury was saying last summer, Davis has provided the explanation.

5 – Ministers are making an effort to show the judiciary some respect. Last year Liz Truss and her colleagues were criticised for not standing up for the judges behind the original article 50 ruling after they were attacked by the Daily Mail and others. This morning Truss issued a supportive statement. And Davis was full of praise for the supreme court, stressing its value in his opening statement and later describing its ruling as “a very good judgment, a very sound judgment”. See 1.20pm.

6 – Davis does not accept that appealing to the supreme court was a waste of money. Some opposition MPs have been making this charge. But Davis rebutted this strongly, saying it was worth spending money on an appeal to get a definitive judgment on this point of law. See 1.46pm.

//

BBC News, “Close player Government loses Brexit vote appeal (by a majority of 8 to 3)

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