:00:00. > :00:00.been closely questioning the main barrister for the government today,
:00:00. > :00:00.at this time, every night for the next four M evenings we will bring
:00:00. > :00:14.you the highlights of the day. Here is Ben Brown.
:00:15. > :00:22.Good evening from the Supreme Court. The highest court in the land. We
:00:23. > :00:26.are at the end of the first day of a four-day hearing on Brexit. Whom
:00:27. > :00:31.should trigger Article 50 of the Lisbon Treaty to take the United
:00:32. > :00:35.Kingdom out of the European Union? Can it be the government acting
:00:36. > :00:40.alone with his prerogative of executive powers, or should it be
:00:41. > :00:44.Parliament? China Miller, businesswoman, brought the case to
:00:45. > :00:52.the High Court last month, saying it should be Parliament triggering
:00:53. > :00:55.Article 50, the High Court agreed, the government appealed the decision
:00:56. > :00:59.to the supreme Courts of the first time we have all Supreme Court
:01:00. > :01:04.judges hearing this case, and the president of the Supreme Court began
:01:05. > :01:08.today with an opening statement in which he said that the judges will
:01:09. > :01:18.decide this purely on matters of not politics. -- law not politics. I
:01:19. > :01:22.would like to take this opportunity to remind everyone who has taken an
:01:23. > :01:27.interest in the proceedings that the Supreme Court exists to decide
:01:28. > :01:30.points of law, which fall within its jurisdiction. The justices of the
:01:31. > :01:35.court are of course aware of the public interest in this case, and we
:01:36. > :01:40.are aware of the strong feelings associated with the many other wider
:01:41. > :01:47.political questions surrounding the United Kingdom's departure from the
:01:48. > :01:50.European Union. However, as will be apparent from the arguments before
:01:51. > :01:56.us, those are wider political questions are not the subject of
:01:57. > :02:00.this appeal. This appeal is concerned with legal issues, and as
:02:01. > :02:05.a judge is our duty is to consider those issues impartially, and to
:02:06. > :02:11.decide the case according to the law. That is what we will do. That
:02:12. > :02:15.was the president of the Supreme Court, whatever the court decides,
:02:16. > :02:22.and we will not get the ruling until the New Year, it will have immense
:02:23. > :02:25.political and constitutional implications, political implications
:02:26. > :02:30.for the government and the Prime Minister, because it will affect her
:02:31. > :02:34.timetable for Brexit, she has said that she wants to trigger Article 50
:02:35. > :02:37.by the end of March, if the government lose here at the Supreme
:02:38. > :02:42.Court that they will have to put a bill before Parliament on Article
:02:43. > :02:46.50, that could be amended or delayed, and that could interrupt
:02:47. > :02:51.the government timetable on Brexit, so, for the government, we heard
:02:52. > :02:54.today from the Attorney General, Jeremy Wright QC, putting the
:02:55. > :03:04.government case to the Supreme Court. My three submissions are
:03:05. > :03:08.these, first, that the foreign affairs prerogative is not an
:03:09. > :03:13.ancient relic, but a contemporary necessity. Including the powers to
:03:14. > :03:17.make or withdraw from treaties, it is a fundamental pillar of our
:03:18. > :03:23.Constitution is a sovereign state, and it is essential to the effective
:03:24. > :03:29.conduct of public business. Second, the prerogative operates as part of
:03:30. > :03:35.the dualist system, including in the EU context. And thirdly, that the
:03:36. > :03:38.prerogative operates wholly in accordance with parliamentary
:03:39. > :03:42.sovereignty. Parliament has a clear understanding of the constitutional
:03:43. > :03:45.function and usefulness of these powers, and where it chooses to
:03:46. > :03:52.limit then it does so carefully and specifically. The position of the
:03:53. > :03:57.respondents and others in this case, has always been that they have no
:03:58. > :04:01.interest in derailing Brexit, but only in defending Parliament's role
:04:02. > :04:06.in the process. But if this is all about standing up for Parliament, I
:04:07. > :04:13.say Parliament can stand up for itself. Will it comes to leaving the
:04:14. > :04:17.European Union, Parliament has had full capacity and multiple
:04:18. > :04:21.opportunities to restrict the executor's ordinary ability to begin
:04:22. > :04:28.the Article 50 process and it has not chosen to do so. However much
:04:29. > :04:33.they may wish it had, those who support parliamentary sovereignty
:04:34. > :04:34.should resubmit and respect this exercise of parliamentary
:04:35. > :04:46.sovereignty also. From forward of the day he was
:04:47. > :04:49.putting the Government's case as well and came under some cross
:04:50. > :04:54.examination from the bench and the Supreme Court judges who at times
:04:55. > :05:05.challenged his interpretation of the Constitution.
:05:06. > :05:14.They do say the European communities and 1972 was neutral as to weather
:05:15. > :05:21.the United Kingdom was a member of the European communities. We say
:05:22. > :05:29.proceeded on the assumption it was a matter for Government. You've shown
:05:30. > :05:38.very convincingly that our entry into the EU was a joint effort. The
:05:39. > :05:42.exercise of prerogative power by the executive and the exercise of
:05:43. > :05:48.legislative power by Parliament. And put simply, one of the arguments
:05:49. > :05:52.that she will have to deal with is if our accession was the result of
:05:53. > :06:02.joint effort, should our departure not equally be so? My lord, the
:06:03. > :06:08.submission I make is that the joint effort in the 72 act is a joint
:06:09. > :06:11.effort in the sense that it assumes all the prerogative powers continue
:06:12. > :06:25.to exist and be operated, so all this is doing is not... It is
:06:26. > :06:32.designed to deal with transposition. It does not authorise or purport to
:06:33. > :06:39.be a joint effort in relation to the going into. It simply assumes and is
:06:40. > :06:47.built on the continued existence of that power and withdrawal,
:06:48. > :06:52.therefore, is entirely consistent with that framework, because when
:06:53. > :07:04.you withdraw, you withdraw on that basis. You withdraw the premise is
:07:05. > :07:11.sitting parallel to. Presumably you've got evidence for it all been
:07:12. > :07:16.carefully considered? My liver, we will check overnight to make sure
:07:17. > :07:20.you have the papers. That was James Eadie QC for the Government. Let's
:07:21. > :07:24.get the views of three experts to be listening to the proceedings today.
:07:25. > :07:31.Gavin Phillipson from Durham University, Alison Young from Oxford
:07:32. > :07:34.University and the BBC's legal correspondence. Clive, it has been a
:07:35. > :07:42.day where the Government have put their side of the case, what did you
:07:43. > :07:46.make of it? This legal case is like dancing on the head of a legal pin,
:07:47. > :07:50.because the Government are saying they've refocused their argument
:07:51. > :07:56.from the High Court and saying that the 1972 act that brought these
:07:57. > :08:03.rights into domestic law is a sort of vehicle, a conduit. And these
:08:04. > :08:06.rights are being brought in so they weren't nailed all statutory rights
:08:07. > :08:11.like they would be if there was an act that had eluded element at all,
:08:12. > :08:15.and a fight that they have that status and brought in by an
:08:16. > :08:20.international treaty and the international treaty is brought in
:08:21. > :08:27.by use of the Royal prerogative that those rights could be removed. For
:08:28. > :08:32.ordinary people, that is a difficult concept to grasp. But on the head of
:08:33. > :08:36.that legal pin, a huge amount turns and he got some pretty difficult
:08:37. > :08:42.questions from the judges about that settled argument. That is the heart
:08:43. > :08:47.of it for me. Alison at younger, do you think James Eadie for the
:08:48. > :08:52.Government was convincing in the case he put the court? He made a
:08:53. > :08:55.much stronger case than they did in the High Court by focusing on this
:08:56. > :09:01.argument that they are not really statutory rights because of this
:09:02. > :09:06.conduit as Clive was explaining, so it is a stronger case. But because
:09:07. > :09:11.it is so technical and detailed, is quite hard to be persuasive and I
:09:12. > :09:15.think he is not thinking about the deeper constitutional consequences
:09:16. > :09:18.of the act and I think to expect questions on that tomorrow, trying
:09:19. > :09:22.to pin down what the deeper constitutional principles are and
:09:23. > :09:26.how important they are for this argument. Gavin Phillipson, the
:09:27. > :09:30.Attorney General was saying if this is a question of who triggers
:09:31. > :09:41.Brexit, the Government or Parliament, he said if Parliament
:09:42. > :09:44.really wanted to have the final say on this, they could have written it
:09:45. > :09:47.into the referendum I that paved the way for the referendum and they did
:09:48. > :09:49.not. Were you persuaded by that? I think that's because legislation is
:09:50. > :09:57.drafted by the Government. They didn't think never going to lose and
:09:58. > :10:01.it was just an oversight. Many people would think it was
:10:02. > :10:05.extraordinary but you can just admit and say keep key link in the piece
:10:06. > :10:09.of legislation of that importance? This is costing hundreds of millions
:10:10. > :10:14.of pounds, all these lawyers and judges and paperwork, they could
:10:15. > :10:26.have summed it all up in an act of Parliament. Do you think this is a
:10:27. > :10:29.constitutional clash between the Government and its prerogative
:10:30. > :10:35.powers, these powers that were inherited from kings and queens of
:10:36. > :10:40.old and Parliament? Is that how you see it? Yes, it is one of the cases
:10:41. > :10:44.where the prerogative powers come into collision with statues. There
:10:45. > :10:49.have been previous cases, many back in the early 20th century, but never
:10:50. > :10:52.in a case as huge as this. We can take the UK out of the European
:10:53. > :10:58.Union without any say-so from Parliament at all and all other EU
:10:59. > :11:04.rights will evaporate, that is their plan. Clive, is that the essence of
:11:05. > :11:09.this? Lodge is usually politically significant, but of constitutional
:11:10. > :11:14.significance and off all the Constitution works in the UK? The
:11:15. > :11:17.most important case where power lies in a Constitution for decades. Where
:11:18. > :11:23.the limits of executive power and where Parliamentary power begins.
:11:24. > :11:26.One of the other things that is fascinating is it is a
:11:27. > :11:31.constitutional tension in another way which is this is a judicial
:11:32. > :11:36.review and has been triggered by two ordinary citizens. The first time
:11:37. > :11:40.around at the High Court a lot of people just did not get how powerful
:11:41. > :11:45.judges are in our Constitution, because they have the power to stop
:11:46. > :11:50.ministers in their tracks through the mechanism of judicial review if
:11:51. > :11:54.ministers are proposing to do is unlawful and funny, that is one of
:11:55. > :11:57.the great constitutional tensions of our time between a powerful
:11:58. > :12:02.executive, the irresistible force of very powerful executive that meets
:12:03. > :12:06.the immovable object of a group of independent judges who threw the
:12:07. > :12:11.mechanism of judicial review have power to stop ministers if what they
:12:12. > :12:17.are proposing is constitutionally unlawful. Alison Young from Oxford
:12:18. > :12:20.University, for the judges hear of the Supreme Court, having seen their
:12:21. > :12:26.colleagues at the High Court vilified by the media as enemies of
:12:27. > :12:31.the people, more will be going through their minds? Will they think
:12:32. > :12:35.how difficult this case is not to be seen at him politically? They will
:12:36. > :12:39.be aware of the ramifications, particularly having seen what
:12:40. > :12:44.happened before. But it is important to recognise this is essentially a
:12:45. > :12:49.legal question, which is why we have so many legal technicalities and
:12:50. > :12:53.discussions of old case law. They'll be focusing on the strength of legal
:12:54. > :12:59.arguments from both sides, so there will be political ramifications, but
:13:00. > :13:04.in their heads, it is about the law. You mentioned case law, but some of
:13:05. > :13:11.it was quite obscure, about a hotel owner in World War I? In a nutshell,
:13:12. > :13:16.tell us why that is relevant to Brexit? Because it is an old case
:13:17. > :13:20.that looked at this battle between prerogative powers and legislation.
:13:21. > :13:24.The idea was if you have a prerogative power that says you can
:13:25. > :13:27.requisition a hotel and legislation that says you can requisition a
:13:28. > :13:31.hotel but you must pay compensation, you must use the legislation in that
:13:32. > :13:34.case, not the prerogative power. That's why they're referring to it,
:13:35. > :13:40.because it's another example of clash between the two. Well
:13:41. > :13:46.explained, thank you Alison the young, Gavin Phillipson and Clive
:13:47. > :13:51.Coleman. That's the end of the first day of this four day hearing.
:13:52. > :14:00.Tomorrow we will hear more from James Eadie and also the other side
:14:01. > :14:01.of the argument. Arguing that it will be Parliament must trigger
:14:02. > :14:22.article 50 to begin Brexit. You are watching BBC News and there
:14:23. > :14:26.is much more on the proceedings at the Supreme Court including a
:14:27. > :14:27.profile of the 11 sitting justices over on our