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The Guardian - UK
The Guardian - UK
Politics
Jamie Grierson (now) and Haroon Siddique (earlier)

Brexit: article 50 supreme court hearing – live updates

Attorney general opens government supreme court appeal – video

  • The attorney general, Jeremy Wright, told the 11 justices sitting at the supreme court that the EU referendum had been conducted “with the universal expectation that the government would implement the result”, at the outset of the crucial constitutional case.
  • Amid the febrile atmosphere surrounding the case, Wright also said it was “perfectly proper” for the claimants to have brought the case and that the supreme court should now take the decision.
  • The government’s opening arguments centred on the use of the royal prerogative by the government, which Wright said was not an “ancient relic” but was essential to “maintain control”. He said that parliament is sovereign but it had chosen to limit the government’s prerogative powers “sparingly, conscious of the need for executive powers”.
  • James Eadie QC, who developed the government’s arguments said that the power to make war and peace have long been part of the government’s executive powers. He added: “It’s no small thing to alter the constitutional balance by limiting long-standing powers.”
  • In his opening remarks, the president of the supreme court said none of the parties involved in the case asked any of the 11 justices to stand down ahead of the hearing. Lord Neuberger’s comments follow critical coverage from pro-Brexit newspapers with respect to some of the justices.
  • Neuberger also also reminded the media that the names of some of the former claimants and their families should not be identified because of “threats of serious violence and unpleasant abuse” made to them online and in emails. “Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law,” he said.
  • Eadie argued the European Communities Act 1972 made no provision regarding any decision to subsequently withdraw from the European treaties.
  • Later, Eadie turned to the 2015 legislation that authorised the EU referendum, acknowledging it did not explicitly explain how the result should be put into effect. But, he said, that did not mean that the act was, as the high court ruled, “legally irrelevant”. It implied that the royal prerogative should be used to implement withdrawal.

The court will resume again tomorrow morning. Thanks for reading.

That’s it for the day. I’ll post a summary shortly.

The 2015 act was passed with Parliament acknowledging the political realities with the scale of the decision to stay or leave,. Eadie says. In doing so Parliament was acknowledging the vote should decide that question and all concerned, including parliament, would respect outcome, he argues.

In case anyone watching thinks court is being particularly hard on Eadie, a reminder:

Turning to the 2015 legislation that authorised the EU referendum, Eadie acknowledged it did not explicitly explain how the result should be put into effect.

But, he said, that did not mean that the act was, as the high court ruled, “legally irrelevant”. It implied that the royal prerogative should be used to implement withdrawal, Eadie said.

“Was parliament in 2015 really in setting up the referendum doing nothing more than simply reserving to itself the right to leave the EU?” he asked. “Not merely is it highly improbable, but that would run counter to the repeated statements of ministers and the government.”

Eadie is now turning to the European Union Referendum 2015 act. It makes no reference to the legal consequences after the referendum. However, that absence does not mean that the 2015 act is legally irrelevant, he says.

Updated

Supreme Court puts it to Eadie that he accepts ECA has constitutional status but this does not undermine his argument - as they put it, “so what?”.

Hi, Jamie Grierson here, taking over from Haroon Siddique, who will no doubt dream tonight of the transposition of international legislation into domestic law.

The European Union (amendment) 2008 Act, which incorporated the Lisbon Treaty, had to consider article 50, says Eadie. It was one of the principal changes introduced by Lisbon, says Eadie.

It could have restricted the exercise of prerogative powers by the government but did not, he argues. The article in question was explicitly mentioned, says the attorney general, but he suggests the intention was “to leave article 50 well alone”.

Since you’re here, we have a small favour to ask. More people are reading the Guardian than ever – but far fewer are paying for it, and advertising revenues are falling fast. So you can see why we need to ask for your help. The Guardian’s journalism takes a lot of time, money and hard work to produce. But we do it because we believe that independent reporting and plurality of voices matter. If everyone who reads our reporting helps to pay for it, our future would be much more secure. Support us with a monthly payment or a one-off contribution – Guardian HQ

Eadie says it is a question of if there is a distinction between complete withdrawal of these rights and destroying some of these rights. He claims we know that the government can do the latter.

The words “time to time” in the ECA 1972 (see below), he contends, support the government’s argument by referring to the fact that the exercise of the government’s prerogative powers in Brussels may involve changing people’s rights.

The essence of the rights created by the ECA is they are dependent upon action occurring on the international plain so the withdrawal from the EU is not overriding or revoking rights in the ECA, says Eadie.

The attorney general says that as article 50 did not exist in 1972 there could not have been an intention to abrogate the power to trigger article 50.

The act imposes no restriction on action or treaty-making or anything else to do with treaties on the international plain on the government, continues Eadie.

We could until 1978 adopted new treaties without parliament, even if that might have had political ramifications, he says.

Good question from Lord Wilson:

You’ve shown convincingly that our accession to the EEC (the forerunner to the EU) in 1972 was a joint effort by parliament and prerogative, can you show that pulling out will not require a similar joint effort?

Eadie unsurprisingly demurs. He says you need a joint effort to go in to transfer powers to the UK but not to get out. The justices do not seem convinced.

Eadie moves on to the European Communities Act 1972 which he said made no provision regarding any decision to subsequently withdraw from the European treaties.

The attorney general says there is nothing in the wording to support that it places a restriction on the government’s treaty prerogative.

Under the ECA Act 1972, parliament was merely facilitating membership should the government with its prerogative take the country into the EEC, argues the attorney general.

Eadie says that because the long title of the act does not say “for and in connection with”, unlike other acts, it does not limit executive powers, transferring them effectively to parliament.

Eadie is talking about the Constitutional Reform and Governance Act 2010 (Crag), which relates to parliamentary control over treaties (and is apparently the only act which does so on a general level).

Eadie says that Crag is significant because parliament has decided what intervention in the prerogative sphere it wants to make with regard to treaties.

The intervention is “express and nuanced”, says Eadie. It applies to ratification of treaties, it leaves untouched making of treaties.

It requires no requirement by parliament in withdrawal or commencing the process of withdrawal, even though it might have impact on the domestic and international plains, says Eadie.

It therefore represents a “considered decision” to leave withdrawal to government, the attorney general says.

However, he is challenged by the justices for evidence that this was a “considered decision” to leave withdrawal to government. Was there a white paper, for example, he is asked?

Eadie said he will respond tomorrow to these queries.

Updated

The judges are back in and Eadie resumes.

Summary

  • The attorney general, Jeremy Wright, told the 11 justices sitting at the supreme court that the EU referendum had been conducted “with the universal expectation that the government would implement the result”, at the outset of the crucial constitutional case.
  • Amid the febrile atmosphere surrounding the case, Wright also said it was “perfectly proper” for the claimants to have brought the case and that the supreme court should now take the decision.
  • The government’s opening arguments centred on the use of the royal prerogative by the government, which Wright said was not an “ancient relic” but was essential to “maintain control”. He said that parliament is sovereign but it had chosen to limit the government’s prerogative powers “sparingly, conscious of the need for executive powers”.
  • James Eadie QC, who developed the government’s arguments said that the power to make war and peace have long been part of the government’s executive powers. He added: “It’s no small thing to alter the constitutional balance by limiting long-standing powers.”
  • In his opening remarks, the president of the supreme court said none of the parties involved in the case asked any of the 11 justices to stand down ahead of the hearing. Lord Neuberger’s comments follow critical coverage from pro-Brexit newspapers with respect to some of the justices.
  • Neuberger also also reminded the media that the names of some of the former claimants and their families should not be identified because of “threats of serious violence and unpleasant abuse” made to them online and in emails. “Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law,” he said.

Back to the court and they continue to go through the case law.

Lord Sumpton asks whether prerogative power authorise things only that don’t alter domestic law or is it a general power?

Eadie says there are “two different beasts in play”.

The first is how does the court seek to discern whether the prerogative has been abrogated and the second is the nature of the 1972 European Communities Act.

Asked again about the limits of the prerogative powers to make treaties, Eadie argues that there is broad prerogative power to make treaties. Lord Carnwath then joins in and Eadie is facing tough questioning but then they break for lunch.

Proceedings will resume at 2pm.

As the case got underway, Theresa May’s official spokeswoman accused opposition parties of trying to “frustrate the will of the British people”. Asked about the suggestion that Labour and Liberal Democrat MPs wanted to amend any bill that would result if the government lose the case, she said:

Others are seeming to make clear that they want to frustrate the will of the British people by slowing down the process of leaving and trying to tie the hands of the government negotiation and the government in getting on with respecting what the British people have decided.

We are now onto the 1972 case of Laker Airways (now defunct) v Department of Trade.

Policy guidance issued by the DoT was found to be unlawful because it was contrary to the statutory objectives laid down for the Civil Aviation Authority by section 3 of the 1971 Act.

Lord Denning said that the exercise of a discretionary prerogative power “can be examined by the courts just as any other discretionary power which is vested in the executive”.

Eadie says the high court got the decision wrong in that case but is being challenged by some of the justices.

Parliament can limit or remove prerogative powers expressly, says Eadie.

Whether it has done so in other spheres is a question of statutory interpretation.

The court should require “real clarity before prerogative powers are limited” because of the constitutional significance of doing so, the attorney general argues.

Prerogative powers, the right for the government to exercise its executive powers, must be taken away by parliament “expressly or by implication”, continues Eadie.

Under this model of transposition of international legislation into domestic law (as under the 1972 act) parliament thereby created a system where rights and obligations shift but “all of that is done by the exercise of executive powers without further parliamentary authorisation”, argues Eadie. That includes the withdrawal of rights.

As the transposition is dependent on steps taken by the government on the international plain, the government therefore has the ability to alter the rights and obligations contained therein, says the attorney general.

It can “remodel or reshape” EU law on the international plain as can other sovereign actors. When Greenland left the EU it impacted on UK citizens, says Eadie. Therefore it is inaccurate to treat them as if they are the same as “purely domestic rights”.

Eadie continues

The royal prerogative embraces the making of treaties.

This applies to repudiating treaties as well, he argues.

He says that treaties are not “self-executing”, they need to be transposed into domestic law.

Eadie has been citing the case highlighted below.

There’s an intervention by one of the justices.

Updated

Attorney General's opening remarks

Use of the royal prerogative by the government for executive action, such as triggering Brexit, is not an ancient relic of outdated laws but a crucial part of the modern state’s powers, the attorney general has told the supreme court.

Opening the government’s arguments in the pivotal constitutional case, Jeremy Wright QC said that the EU referendum had been conducted “with the universal expectation that the government would implement the result”.

The high court, which rejected the government’s arguments, had been wrong to dismiss the way the referendum was organised as “legally irrelevant”, the attorney general said.

The use of prerogative in foreign affairs us not ancient relic but a ..fundamental pillar of our constitutional state. The need [for governments] to maintain control of strategy and policy matters is clear and compelling.

Parliament is sovereign, Wright said, but had chosen to limit the governments prerogative powers “sparingly, conscious of the need for executive powers”.

Eadie contiues for the government, saying the prerogative powers are ancient but what that implies is that “they are firmly established in our constitutional arrangements” and can be said to have real value.

The correct starting point is not suspicion of prerogative powers, it is a recognition that the prerogative powers that remain in the hands of our government are “fundamental”.

Prerogative powers are by definition those powers the government can exercise without statutory authority otherwise they would become statutory powers, says Eadie.

Parliament can choose to limit prerogative powers in any way it seeks fit, or even to remove powers so it is accurate to describe it as “part of sovereignty which parliament has chosen to leave in the government’s hands,” says Eadie, quoting a historic precedent.

The continued existence and exercise of prerogative powers is “constitutionally sound and not suspect”, says Eadie.

Now it’s James Eadie QC for the government, whose work as “Treasury devil” requires him to be present at innumerable cases involving the government.

The government’s prerogative powers (inherent executive powers) are a “pillar of the modern British constitution”, in war and peace, the ability to make and unmake treaties.

We are not alone in having the system that we do. Other common law jurisdictions have similar prerogatives on treaty making, ratification and withdrawal.

He mentions Australia, Canada and New Zealand. In the US, he says the power to withdrawal rests entirely in the executive (although a two-thirds majority is needed in the senate for ratification).

The trigger of article 50 “will not be the exercise of prerogative power on a whim”, says the attorney general.

Wright says if this is about standing up for parliament, “parliament can stand up for itself”. It has had “multiple opportunities to restrict the prerogative”.

The respondents arguments are inconsistent with parliamentary sovereignty, he concludes.

Updated

Wright says the foreign affairs prerogative is “not an ancient relic but a modern necessity”. It gives the government the right to make and agree new treaties.

In other countries such as Canada, the executive retain the power to enter into treaties etc, he says.

The European Communities 1972 Act cannot and does not create EU obligations. They are negotiated and agreed by government. Doing so involves the use of prerogative, says Wright.

Parliament is sovereign, he continues, and can limit the prerogative but has done so sparingly. In the context of the European Union, parliament has already decided what the limits of the prerogative should be, says Wright.

There is nothing to inhibit withdrawal from the European Union.

Had parliament wanted to inhibit this power, it could have done so under a number of different acts that have been implemented over the years, argues Wright.

The referendum was intended to provide the “definite answer” as signalled by the vigour with which it was fought by both sides, says Wright.

Updated

The attorney general for England and Wales, Jeremy Wright QC, is up first.

He says this is a case of “great constitutional significance”. This is a case which the claimants brought “perfectly properly” and that it is perfectly proper that it is now being heard by the supreme court.

The case raises issues going to “the very heart of our constitutional significance”.

Wright says the referendum was conducted with “the universal expectation that the government would implement its result”.

He says use of the prerogative in these circumstances would not only be lawful but in accordance with the constitutional settlement and in line with public perceptions.

Neuberger says the justices have “carefully read” written submissions from all parties.

He says the justices are pleased that so many people are able to follow the case online.

He stresses that the supreme court exists to “decide points of law”.

Wider political questions are not the issue of this appeal.

None of the parties involved in the case asked any of the 11 justices to stand down ahead of the hearing, the president of the supreme court revealed in opening remarks.

Lord Neuberger’s comments, made following fiercely critical coverage from pro-Brexit newspapers, reflects the courts determination to assert its impartiality in the proceedings. He explained:

It is right to record that, at the direction of the court, the registrar has asked all the parties involved in these proceedings whether they wish to ask any of the Justices to stand down.

All parties to the appeal have stated that they have no objection to any of us sitting on this appeal.

The president of the supreme court also reminded the media that the names of some of the former claimants and their families should not be identified because of online abuse.

We have made this order largely because various individuals have received threats of serious violence and unpleasant abuse in emails and other electronic communications.

Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law. Anyone who communicates such threats or abuse should be aware that there are legal powers designed to ensure that access to the courts is available to everyone.

There are so many lawyers, journalists and members of the public in court that some of the barristers and solicitors taking part gave had to sit in neighbouring courts watching the hearing by live video link.

The justices have come in and seated. You’ll be pleased to know it all went smoothly and there was no squabbling over seats.

Pictures from inside the court are being broadcast live. We await the entrance of the 11 justices, which is expected shortly.

The attorney general for England and Wales, Jeremy Wright QC, will outline the government’s argument at the start of today’s hearing.

The Telegraph reports that, in a written submission to the court, he warned:

The court is being invited by the lord advocate and the counsel general to stray into areas of political judgment rather than legal adjudication. The court should resist that invitation, particularly where the underlying issue is one of considerable political sensitivity ...

The premise of the 2015 [referendum] act was the continued existence of the government’s prerogative powers to act on the international plane – including, specifically, to give Article 50 notice as the first step to implementing a ‘leave’ vote. That was the clear understanding of all concerned and the basis on which people voted in the referendum.

The Telegraph says Wright also warned that the court’s decision could lead to parliament “micro-managing” all of the UK’s future treaty negotiations and cited one of Britain’s most eminent constitutional experts, saying that he “afforded far more significance to the will of the electorate” and described referendums as “the people’s veto”.

Who are the 11 justices who will decide on the appeal? My colleague, Owen Bowcott, has profiled them all. They include:

Lord Neuberger, president of the supreme court since 2012

Educated at Westminster School and studied chemistry at Oxford University, Lord Neuberger worked at a merchant bank before joining the bar. First judicial appointment as a recorder, a part time judge, in 1990. His wife’s pro-European tweets have led to Eurosceptic calls for him to stand aside from the case.

Lady Hale, deputy president of the supreme court since 2013

The most senior woman on the bench, studied law at Cambridge University, then lectured at Manchester University while practising as a barrister. She specialised in family and social welfare law, becoming a high court judge in 1994. A speech she delivered setting out the arguments ahead of the Article 50 case infuriated Brexiteers.

David Neuberger, walking with fellow judges to Westminster Abbey for a service to mark the start of the legal year.
David Neuberger, walking with fellow judges to Westminster Abbey for a service to mark the start of the legal year. Photograph: Luke Macgregor/Reuters

By 9am, the number of Europhile protesters outside the supreme court far outnumbered Brexiteers.

An open top, double-decker bus carrying supporters dressed as judges, in wigs, capes and duelling swords, parked outside. They chanted “Nigel [Farage], where are you!” Farage had threatened to lead a protest march of 100,000 Brexiters to the doors of the supreme court before announcing last week that he was cancelling it

The rear of the vehicle, draped in union jacks and EU flags, carried the motto: ‘This one’s for Gina’, a reference to Gina Miller, the lead claimant in the case against the government.

Cheered loudly as she entered the supreme court, Miller said she was confident of winning but would be watching all the arguments closely. “The media have not picked up the significance of the devolution arguments,” she added.

Miller was accompanied by bodyguards for protection as she came through security.

A Britain for Europe leaflet handed out to the media explained: “A referendum alone does not change laws.”

A few Brexit supporters outside the court carried protest placards. One declared: “Judges: This is an establishment stitch up.”

Protesters wearing judges’ wigs and robes ride an open top bus past the supreme court in Parliament Square, central London
Protesters wearing judges’ wigs and robes ride an open top bus past the supreme court in Parliament Square, central London Photograph: Toby Melville/Reuters

Since you’re here, we have a small favour to ask. More people are reading the Guardian than ever – but far fewer are paying for it, and advertising revenues are falling fast. So you can see why we need to ask for your help. The Guardian’s journalism takes a lot of time, money and hard work to produce. But we do it because we believe that independent reporting and plurality of voices matter. If everyone who reads our reporting helps to pay for it, our future would be much more secure. Support us with a monthly payment or a one-off contribution – Guardian HQ

As mentioned earlier, this is the largest panel of justices ever assembled for a single case since the Law Lords were created in 1876. Usually five sit at the supreme court, or occasionally seven.

Given that this is new territory for everyone involved and the level of interest in the case, steps have sensibly been taken to make sure everything runs smoothly, according to the Times.

It reports that “the judges are so keen not to mess up that they have been practising processing into the courtroom and the taking of their seats. They are anxious not be seen jostling over who sits where.”

The Times reports that the dummy run went “very smoothly,” according to an observer with seating in order of seniority.

It says that an estimated 300,000 viewers are expected to watch the live streams (we are intending to embed a live stream when proceedings begin at 11am).

The Guardian’s legal affairs correspondent, Owen Bowcott, has profiled the claimants, including Gina Miller, a UK investment manager. She is represented by the law firm Mishcon de Reya, Lord Pannick QC and Rhodri Thompson QC.

The lead claimant is Gina Millar, 51, who was born in Guyana but became a UK citizen. She has received death threats. She denies that her challenge is aimed at reversing Brexit.

She has commented:

All the people who have been saying ‘we need to take back control’, ‘we need sovereignty’, well you can’t have it with one hand and then with the other say, ‘I’m going to bypass it now and not seek consultation from the representatives in parliament’. You just can’t have it both ways.

Businesswoman Gina Miller outside the supreme court in London, where the government is appealing against a ruling - as a result of a case she brought previously - that the prime minister must seek MPs’ approval to trigger the process of taking Britain out of the European Union.
Businesswoman Gina Miller outside the supreme court in London, where the government is appealing against a ruling - as a result of a case she brought previously - that the prime minister must seek MPs’ approval to trigger the process of taking Britain out of the European Union. Photograph: Victoria Jones/PA

Labour’s shadow attorney general, Shami Chakrabarti, said today the political aspect of the case had been “hyped in parts of the media”. She said: “This is about process. It is not about outcomes.”

Chakrabarti told BBC Radio 4’s Today programme:

It’s not just about doing it or not doing it. There are lots of questions to be decided about what happens next – how we live after Brexit, what our relationship will be with the remaining states of the European Union.

She said it was unfair for newspapers to delve into the personal lives or supposed opinions of the judges.

They have to be referees of the constitution. If we start dragging these people through the media or through politics, putting them through a kind of political scrutiny – people like me are fair game, but the judges are not fair game. They cannot speak up for themselves. We all need them in the end if we’re going to settle our disputes in a civilised way in a courtroom.

To say emotions are running high ahead of today’s hearing would be an understatement.

The three high court judges who ruled in favour of the claimants last month were vilified in sections of the press, including being branded “enemies of the people” by the Mail.

Claimants including Gina Miller have received death threats.

The former Ukip leader, Nigel Farage, even threatened to lead a protest march of 100,000 Brexiters to the doors of the supreme court before announcing last week that he was cancelling it because of fears it would be hijacked by far-right extremist groups and of an ugly confrontation with pro-EU supporters.

Before the hearing has even begun, the supreme court justices are coming under intense pressure.

On Saturday, an editorial in the Mail, read:

With only a simple majority needed for a ruling, we therefore find it disturbing That no fewer than five Supreme Court judges have publicly expressed views which appear to be sympathetic to the EU, while six have close links with people who have publicly attacked the Leave campaign.

And this is the message on the front page of today’s Telegraph:

Good morning. The largest panel of justices ever assembled for a single case since the Law Lords were created in 1876 will take their seats today for a case of huge constitutional significance.

The 10 men and one woman are charged with deciding whether parliament or the government has the authority to trigger Brexit.

Article 50 states that any member state may leave “in accordance with its own constitutional requirements”. The lack of a written constitution in the UK has left the interpretation up for debate.

The claimants successfully argued in the high court that only parliament has the authority to trigger article 50 must be taken by parliament. The government, which is appealing the high court’s decision, claims that executive powers, inherited through what was once the royal prerogative, are sufficient to sign and authorise international treaties.

The size of the panel is a reflection of the importance of the case and its political sensitivity. After the high court ruling raised hopes that Theresa May would be forced to pursue a “soft” Brexit, in order to get parliamentary approval to trigger article 50, the pound surged to a four-week high against both dollar and euro.

The hearing is scheduled to commence at 11am today and to conclude on Thursday. The justices will then retire to consider their judgement, which is expected to come in January.

Updated

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