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