Day 1 Brexit at the Supreme Court


Day 1

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been closely questioning the main barrister for the government today,

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at this time, every night for the next four M evenings we will bring

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you the highlights of the day. Here is Ben Brown.

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Good evening from the Supreme Court. The highest court in the land. We

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are at the end of the first day of a four-day hearing on Brexit. Whom

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should trigger Article 50 of the Lisbon Treaty to take the United

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Kingdom out of the European Union? Can it be the government acting

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alone with his prerogative of executive powers, or should it be

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Parliament? China Miller, businesswoman, brought the case to

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the High Court last month, saying it should be Parliament triggering

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Article 50, the High Court agreed, the government appealed the decision

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to the supreme Courts of the first time we have all Supreme Court

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judges hearing this case, and the president of the Supreme Court began

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today with an opening statement in which he said that the judges will

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decide this purely on matters of not politics. -- law not politics. I

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would like to take this opportunity to remind everyone who has taken an

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interest in the proceedings that the Supreme Court exists to decide

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points of law, which fall within its jurisdiction. The justices of the

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court are of course aware of the public interest in this case, and we

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are aware of the strong feelings associated with the many other wider

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political questions surrounding the United Kingdom's departure from the

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European Union. However, as will be apparent from the arguments before

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us, those are wider political questions are not the subject of

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this appeal. This appeal is concerned with legal issues, and as

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a judge is our duty is to consider those issues impartially, and to

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decide the case according to the law. That is what we will do. That

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was the president of the Supreme Court, whatever the court decides,

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and we will not get the ruling until the New Year, it will have immense

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political and constitutional implications, political implications

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for the government and the Prime Minister, because it will affect her

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timetable for Brexit, she has said that she wants to trigger Article 50

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by the end of March, if the government lose here at the Supreme

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Court that they will have to put a bill before Parliament on Article

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50, that could be amended or delayed, and that could interrupt

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the government timetable on Brexit, so, for the government, we heard

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today from the Attorney General, Jeremy Wright QC, putting the

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government case to the Supreme Court. My three submissions are

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these, first, that the foreign affairs prerogative is not an

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ancient relic, but a contemporary necessity. Including the powers to

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make or withdraw from treaties, it is a fundamental pillar of our

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Constitution is a sovereign state, and it is essential to the effective

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conduct of public business. Second, the prerogative operates as part of

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the dualist system, including in the EU context. And thirdly, that the

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prerogative operates wholly in accordance with parliamentary

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sovereignty. Parliament has a clear understanding of the constitutional

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function and usefulness of these powers, and where it chooses to

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limit then it does so carefully and specifically. The position of the

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respondents and others in this case, has always been that they have no

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interest in derailing Brexit, but only in defending Parliament's role

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in the process. But if this is all about standing up for Parliament, I

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say Parliament can stand up for itself. Will it comes to leaving the

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European Union, Parliament has had full capacity and multiple

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opportunities to restrict the executor's ordinary ability to begin

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the Article 50 process and it has not chosen to do so. However much

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they may wish it had, those who support parliamentary sovereignty

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should resubmit and respect this exercise of parliamentary

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sovereignty also. From forward of the day he was

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putting the Government's case as well and came under some cross

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examination from the bench and the Supreme Court judges who at times

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challenged his interpretation of the Constitution.

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They do say the European communities and 1972 was neutral as to weather

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the United Kingdom was a member of the European communities. We say

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proceeded on the assumption it was a matter for Government. You've shown

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very convincingly that our entry into the EU was a joint effort. The

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exercise of prerogative power by the executive and the exercise of

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legislative power by Parliament. And put simply, one of the arguments

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that she will have to deal with is if our accession was the result of

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joint effort, should our departure not equally be so? My lord, the

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submission I make is that the joint effort in the 72 act is a joint

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effort in the sense that it assumes all the prerogative powers continue

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to exist and be operated, so all this is doing is not... It is

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designed to deal with transposition. It does not authorise or purport to

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be a joint effort in relation to the going into. It simply assumes and is

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built on the continued existence of that power and withdrawal,

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therefore, is entirely consistent with that framework, because when

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you withdraw, you withdraw on that basis. You withdraw the premise is

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sitting parallel to. Presumably you've got evidence for it all been

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carefully considered? My liver, we will check overnight to make sure

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you have the papers. That was James Eadie QC for the Government. Let's

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get the views of three experts to be listening to the proceedings today.

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Gavin Phillipson from Durham University, Alison Young from Oxford

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University and the BBC's legal correspondence. Clive, it has been a

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day where the Government have put their side of the case, what did you

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make of it? This legal case is like dancing on the head of a legal pin,

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because the Government are saying they've refocused their argument

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from the High Court and saying that the 1972 act that brought these

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rights into domestic law is a sort of vehicle, a conduit. And these

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rights are being brought in so they weren't nailed all statutory rights

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like they would be if there was an act that had eluded element at all,

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and a fight that they have that status and brought in by an

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international treaty and the international treaty is brought in

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by use of the Royal prerogative that those rights could be removed. For

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ordinary people, that is a difficult concept to grasp. But on the head of

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that legal pin, a huge amount turns and he got some pretty difficult

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questions from the judges about that settled argument. That is the heart

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of it for me. Alison at younger, do you think James Eadie for the

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Government was convincing in the case he put the court? He made a

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much stronger case than they did in the High Court by focusing on this

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argument that they are not really statutory rights because of this

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conduit as Clive was explaining, so it is a stronger case. But because

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it is so technical and detailed, is quite hard to be persuasive and I

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think he is not thinking about the deeper constitutional consequences

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of the act and I think to expect questions on that tomorrow, trying

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to pin down what the deeper constitutional principles are and

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how important they are for this argument. Gavin Phillipson, the

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Attorney General was saying if this is a question of who triggers

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Brexit, the Government or Parliament, he said if Parliament

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really wanted to have the final say on this, they could have written it

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into the referendum I that paved the way for the referendum and they did

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not. Were you persuaded by that? I think that's because legislation is

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drafted by the Government. They didn't think never going to lose and

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it was just an oversight. Many people would think it was

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extraordinary but you can just admit and say keep key link in the piece

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of legislation of that importance? This is costing hundreds of millions

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of pounds, all these lawyers and judges and paperwork, they could

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have summed it all up in an act of Parliament. Do you think this is a

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constitutional clash between the Government and its prerogative

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powers, these powers that were inherited from kings and queens of

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old and Parliament? Is that how you see it? Yes, it is one of the cases

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where the prerogative powers come into collision with statues. There

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have been previous cases, many back in the early 20th century, but never

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in a case as huge as this. We can take the UK out of the European

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Union without any say-so from Parliament at all and all other EU

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rights will evaporate, that is their plan. Clive, is that the essence of

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this? Lodge is usually politically significant, but of constitutional

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significance and off all the Constitution works in the UK? The

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most important case where power lies in a Constitution for decades. Where

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the limits of executive power and where Parliamentary power begins.

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One of the other things that is fascinating is it is a

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constitutional tension in another way which is this is a judicial

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review and has been triggered by two ordinary citizens. The first time

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around at the High Court a lot of people just did not get how powerful

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judges are in our Constitution, because they have the power to stop

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ministers in their tracks through the mechanism of judicial review if

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ministers are proposing to do is unlawful and funny, that is one of

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the great constitutional tensions of our time between a powerful

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executive, the irresistible force of very powerful executive that meets

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the immovable object of a group of independent judges who threw the

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mechanism of judicial review have power to stop ministers if what they

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are proposing is constitutionally unlawful. Alison Young from Oxford

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University, for the judges hear of the Supreme Court, having seen their

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colleagues at the High Court vilified by the media as enemies of

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the people, more will be going through their minds? Will they think

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how difficult this case is not to be seen at him politically? They will

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be aware of the ramifications, particularly having seen what

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happened before. But it is important to recognise this is essentially a

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legal question, which is why we have so many legal technicalities and

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discussions of old case law. They'll be focusing on the strength of legal

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arguments from both sides, so there will be political ramifications, but

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in their heads, it is about the law. You mentioned case law, but some of

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it was quite obscure, about a hotel owner in World War I? In a nutshell,

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tell us why that is relevant to Brexit? Because it is an old case

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that looked at this battle between prerogative powers and legislation.

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The idea was if you have a prerogative power that says you can

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requisition a hotel and legislation that says you can requisition a

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hotel but you must pay compensation, you must use the legislation in that

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case, not the prerogative power. That's why they're referring to it,

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because it's another example of clash between the two. Well

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explained, thank you Alison the young, Gavin Phillipson and Clive

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Coleman. That's the end of the first day of this four day hearing.

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Tomorrow we will hear more from James Eadie and also the other side

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of the argument. Arguing that it will be Parliament must trigger

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article 50 to begin Brexit. You are watching BBC News and there

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is much more on the proceedings at the Supreme Court including a

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profile of the 11 sitting justices over on our

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