:00:00. > :00:00.They've also have the opening argument for the opposing Kates.
:00:00. > :00:00.Every night for the next few evenings we will give you the house
:00:00. > :00:23.of the day. Hello and welcome on the Supreme
:00:24. > :00:26.Court here in central London, the highest court in the land. It has
:00:27. > :00:34.been day two of this historic Brexit legal hearing. 11 Supreme Court
:00:35. > :00:38.Justices hearing the case, hearing the argument about whether it should
:00:39. > :00:42.be the government through its prerogative powers that triggers
:00:43. > :00:47.Article 50 of the Brexit process, all whether it should be Parliament.
:00:48. > :00:52.Well, day two began with more documents being delivered to the
:00:53. > :00:57.court, all the justices were given additional papers by the government
:00:58. > :01:00.team will stop Jean Miller and her legal team arrived once again at the
:01:01. > :01:05.Supreme Court, she is the businesswoman who brought this case
:01:06. > :01:09.in the first place, saying that Parliament has to decide on
:01:10. > :01:16.triggering Article 50. -- Gina Miller. Then, the 11 justices of the
:01:17. > :01:21.Supreme Court took their seats. More paperwork on the desk, more
:01:22. > :01:25.questions in their minds as they continued these historic
:01:26. > :01:28.proceedings. First up, today was James Eadie, QC continuing his case
:01:29. > :01:34.for the government arguing that the government should be able to use its
:01:35. > :01:40.prerogative for executive powers. Powers that are vermin and from the
:01:41. > :01:45.powers of the kings and queens of old. -- powers that are remnants.
:01:46. > :01:49.That they should be able to trigger Article 50 rather than Parliament.
:01:50. > :01:53.On day one James Eadie took some pretty tough questions from the
:01:54. > :01:59.Supreme Court justices. That was just the same day two, perhaps even
:02:00. > :02:07.tougher questions he faced. I'm perfectly content... You prepared to
:02:08. > :02:12.give to opposed answers to the same question. Will have to decide which
:02:13. > :02:18.question we accept. -- which Anza wakes that. My lord, we do not
:02:19. > :02:22.except that it is legally irrelevant but we do except that you can't
:02:23. > :02:25.proceed on the assumption that Parliament will necessarily
:02:26. > :02:28.legislate to introduce or pass the great repeal Bill because that
:02:29. > :02:33.depends on what it decides to do. That law will remain in place,
:02:34. > :02:38.presumably but it will be affected by, for example, those who are
:02:39. > :02:44.beneficiaries of those laws will not be able to act this court or any
:02:45. > :02:48.other court to affair the question to the Luxembourg court in order to
:02:49. > :02:56.ensure that Arnold continues to keep pace with EU law. So, it will be
:02:57. > :03:01.modified, Winter? Except that, you're right. In some of my extent
:03:02. > :03:06.my answer is the same answer that I give to the election to European
:03:07. > :03:08.Parliament point, it is the same point. The constitutional
:03:09. > :03:14.significance to the first part of your question, perhaps as to be
:03:15. > :03:18.thought about, it is owned out of true, swathes and swathes, and we
:03:19. > :03:24.respectably agree, most of European law is made to directives and
:03:25. > :03:30.regulations, they will remain. The question, therefore, will be, back
:03:31. > :03:32.to joint effort, perhaps but this time in relation to implementation.
:03:33. > :03:39.The question will be how is the government going to shape the new
:03:40. > :03:44.domestic law. The answer to that question, almost inevitably it might
:03:45. > :03:50.be thought, is policy area by policy area. It is said that the government
:03:51. > :03:52.giving Article 50 notice is an affront to parliamentary
:03:53. > :03:59.sovereignty, because Parliament has created rights and only it can them.
:04:00. > :04:06.My submission is that our case fully respects and offers no front to
:04:07. > :04:15.parliamentary sovereignty. -- offers no affront. Some thoughts on that...
:04:16. > :04:19.Parliament has indicated those matters on which it is required to
:04:20. > :04:29.be involved further. It has specified when, in relation to what
:04:30. > :04:35.and how it is to be involved. The scheme is as described. Government
:04:36. > :04:41.giving the notice under Article 50 is entirely, it might be fought
:04:42. > :04:44.expressly, in accordance with that scheme and its specific
:04:45. > :04:54.consideration with Article 50. Thirdly,... Parliament is already
:04:55. > :05:01.deeply involved and unsurprisingly involved in the whole process of
:05:02. > :05:04.withdrawal. Of course, now and hereafter it can choose whatever
:05:05. > :05:09.level of involvement it wishes to have in those matters. There have
:05:10. > :05:12.already been debates concerning withdrawal, there was an opposition
:05:13. > :05:19.debate in October and there was another one set down when state. It
:05:20. > :05:26.is perhaps of some interest that an notification has either haughty, or
:05:27. > :05:33.any party in parliament called for primary legislation to be enacted in
:05:34. > :05:38.advance of the giving of the notice. Put another way, more contentiously
:05:39. > :05:41.perhaps, Parliament does not seem to want at the obligation that
:05:42. > :05:48.divisional course has thrust upon them. Fourthly, we submit that the
:05:49. > :05:55.apparent simplicity of the position that the respondents put forward
:05:56. > :06:02.represents we submit a serious constitutional trap. The principle
:06:03. > :06:08.and its application in a context such as the president is at best
:06:09. > :06:14.highly controversial, that is not, we submit, a proper premise, all
:06:15. > :06:20.basis for a presumption as a tool for imputing intention to
:06:21. > :06:26.Parliament. By applying that broad principle, outside its proper
:06:27. > :06:32.confines, we submit, that it would take the court over the lion, a lion
:06:33. > :06:38.that it has been assiduous to respect, between depredation and
:06:39. > :06:44.judicial interpretation. -- over the line. The courts would be proposing
:06:45. > :06:48.a new control of the most serious kind in a highly controversial and
:06:49. > :06:54.carefully considered, by Parliament, area. That was James Eadie then in
:06:55. > :06:59.the afternoon it was the town of Lord Pannick in the afternoon. He
:07:00. > :07:06.argued that the government simply cannot figure score 50 with its
:07:07. > :07:11.prerogative powers, it asked to be Parliament. -- Article 50. The core
:07:12. > :07:16.of his argument was that it all goes back to 1972 and the European
:07:17. > :07:22.Community is at, he said that enshrined European law into British
:07:23. > :07:27.law and it conferred European rights on British citizens. Since
:07:28. > :07:30.Parliament, in 1972, compared those right and British citizens only
:07:31. > :07:34.Parliament can take those rights away again. In other words, particle
:07:35. > :07:41.has to trigger Article 50 and the Brexit process. The argument
:07:42. > :07:48.however, if correct would mean that the 1972 act, far from having a
:07:49. > :07:54.constitutional status would have a lesser status than any other acts, a
:07:55. > :08:03.letter status then the dangers dogs act. Kos on their argument,
:08:04. > :08:09.Parliament has made this fundamental constitutional change to domestic
:08:10. > :08:14.law only for as long as the executive does not take action on
:08:15. > :08:21.the international plane to terminate the treaty commitments. We say, in
:08:22. > :08:28.the context of an act of Parliament, which expressly states, in section
:08:29. > :08:40.two open bracket for close bracket that its decisions take... It would,
:08:41. > :08:47.with respect, be quite extraordinary if nevertheless the 1972 act could
:08:48. > :08:55.be set at naught by the actions of a minister acting without
:08:56. > :09:00.Parliamentary authority. It is inherently implausible that
:09:01. > :09:05.Parliament intended in 1972 when it created this constitutional reform,
:09:06. > :09:14.when it recognised this new source of legal rights and duties that it
:09:15. > :09:18.intended that it could all be set at naught by the exercise of
:09:19. > :09:28.prerogative powers. And in the left-hand column, halfway down you
:09:29. > :09:33.can see the Minister for Europe and in the second paragraph, in line
:09:34. > :09:37.five, he says he's going to start by addressing amendment 16 and he makes
:09:38. > :09:42.the point that he's not surprised that the members should be moved. He
:09:43. > :09:47.says that Amendment 16 does not make in the context of the Bill will stop
:09:48. > :09:54.the legislation is about holding a vote, it makes no provision for what
:09:55. > :09:59.follows the referendum is advisory, except sure, except. That is simply
:10:00. > :10:07.the point I want to make and I think it is entirely consistent with the
:10:08. > :10:14.contents of the act. It did not address at any consequence, far less
:10:15. > :10:21.did it address the process by which the UK would leave the EEE to, if
:10:22. > :10:25.the people voted as they did to leave. -- leave the European Union.
:10:26. > :10:30.In particular it didn't address the respective roles of Parliament are
:10:31. > :10:34.ministers and my submission, very simple submission, is that what ever
:10:35. > :10:42.the proper legal scope of prerogative power in this context,
:10:43. > :10:48.it is entirely unaffected either 2015 act. Now Lord Pannick as you
:10:49. > :10:53.heard, did set out seven reasons why he believes that is the case and why
:10:54. > :10:58.the Supreme Court justices should accept that. If you want more detail
:10:59. > :11:05.on 07 reasons, well you can go to our BBC website. Our home affairs
:11:06. > :11:11.correspondent has been at the hearing throughout and he has
:11:12. > :11:20.tweeted all the detail on those reasons, one by one. So, you can
:11:21. > :11:27.read them on the website. Let's discuss the performances of James
:11:28. > :11:35.Eadie QC for the government and Lord Pannick QC forward Gina Miller. I'm
:11:36. > :11:41.joined by our panel of legal experts. Is deemed illegal brains
:11:42. > :11:48.almost as bright as those 11 Supreme Court justices. We have a professor
:11:49. > :11:52.from Durham University, barrister from Essex Court Chambers we have
:11:53. > :11:56.professor Alison Young from Hertford College Oxford University and the
:11:57. > :12:02.BBC's only goal affairs correspondent. First of all, Lord
:12:03. > :12:08.Pannick replying to James Eadie for the government had to get an? I
:12:09. > :12:12.think he gone very well and has a very different approach. James
:12:13. > :12:17.Eadie, there had been a day and a half of very detailed legal analysis
:12:18. > :12:22.really very sophisticated quite theoretical. But he reduced the
:12:23. > :12:26.government's case to a series of short points. Essentially saying
:12:27. > :12:31.these prerogative, these executive powers they could be legitimately
:12:32. > :12:34.used to trigger score 50, if Parliament had wanted to limit them
:12:35. > :12:42.some way they would have done so they didn't do than to 2015 act when
:12:43. > :12:46.they have the opportunity do so. Really issuing a warning to the
:12:47. > :12:53.judges not to overstepped the line into Jude is. He closed that case.
:12:54. > :12:57.But then Lord Pannick got up and he was almost incredulous. He
:12:58. > :13:04.effectively said that what the government case's is all about...
:13:05. > :13:09.The 1972 act that brought these rights in duties is a mighty oak
:13:10. > :13:11.tree act and it would be inconceivable to think that
:13:12. > :13:16.Parliament would have thought that at the stroke of a minister's pen,
:13:17. > :13:21.using these executive powers, that could all be effectively right away.
:13:22. > :13:24.He took that incredulity to the afternoon and seem to take the
:13:25. > :13:31.number of the justices with him. Alison Young, what did you make of
:13:32. > :13:34.his argument? I like the way he's focusing on broader constitutional
:13:35. > :13:40.principles asking is to think about the reality. He is basically trying
:13:41. > :13:43.to reversed the way we're looking at it. Saying, you can't say we have
:13:44. > :13:48.this broad prerogative power to enter into treaties, there is a
:13:49. > :13:51.principle that says you can't use the power to reduce domestic rights
:13:52. > :13:54.are instead you have to look at would you be removing domestic
:13:55. > :13:59.rights and if so you don't have the power to do that. That is almost
:14:00. > :14:03.like telling the government's argument on its head. It was really
:14:04. > :14:06.interesting to see him do that and swap it around and get is the focus
:14:07. > :14:11.on what it means to be part of Europe. Is it like any of the
:14:12. > :14:14.treaty, or was the European Union something different because of its
:14:15. > :14:17.constitutional importance? I think it is a really interesting issue
:14:18. > :14:22.that the courts to be thinking about. Jammy, we know that Lord
:14:23. > :14:29.Pannick is quite a polished legal format a bit of a star, really, did
:14:30. > :14:32.he live up to his billing on this day as well? As we're saying just
:14:33. > :14:38.before lunch before it is about to start we said he is really want to
:14:39. > :14:42.watch in this case. There was a Senna more moment when he stood up
:14:43. > :14:46.because he's a great Speaker and a great legal and public law expat.
:14:47. > :14:53.He's going to set out the lead claimant's case with real clarity.
:14:54. > :14:57.He did just that. He set out this real clash the idea that I1 hand the
:14:58. > :15:03.European communities act is a new legal order. It heralded this
:15:04. > :15:10.constitutional revolution. That is in stark, class green contrast to
:15:11. > :15:15.what James said this morning who said it was just a conduit. We have
:15:16. > :15:21.this divider looks like the justices are with Lord Pannick. Would you
:15:22. > :15:30.agree with that, can we tell which way the justices are leading on
:15:31. > :15:35.this? Yes, on the whole they showed more... He was put under the cosh in
:15:36. > :15:39.the way the James Eadie was. This afternoon he took chunks out of the
:15:40. > :15:42.government's argument. I like the image of the mighty tree he
:15:43. > :15:45.developed it at some length. The idea that when the parliament did
:15:46. > :15:52.some existing of them they created in UK law and new legal order that
:15:53. > :16:02.gave was this huge bundle of rights on the EU law. The idea that could
:16:03. > :16:08.be swept away by a government's pen. The communities act burned-out have
:16:09. > :16:13.higher status... Yes, having said all of that people will be watching
:16:14. > :16:19.this having voted in the referendum, may be voting to leave and thinking
:16:20. > :16:22.what is all of this about I voted to leave why is this even in the
:16:23. > :16:25.Supreme Court? Absolutely and this is why we need to be very clear
:16:26. > :16:31.about what is in the political sphere and what is in the legal
:16:32. > :16:36.sphere this is a constitutional case all about the legal mechanisms of
:16:37. > :16:39.how Article 50 should be triggered. Does it need to be triggered
:16:40. > :16:43.following an act of Parliament or coat just be triggered by the
:16:44. > :16:47.government. It is not about rerunning the Brexit argument. And
:16:48. > :16:52.both sides in court today have been cleared to say that. Alison, Lord
:16:53. > :16:55.Pannick said at one stage that the referendum was an act of political
:16:56. > :17:00.significance but not of any relevant to the courts. I think what he's
:17:01. > :17:04.doing is drawing up the difference between politics and the law. As we
:17:05. > :17:14.said Elliott, they could've said in the referendum act that they will
:17:15. > :17:19.empower the the legislative... What is essentially trying to say is cars
:17:20. > :17:24.of that there is no legal obligation, but that doesn't mean to
:17:25. > :17:27.say the referendum is not important, it is politically important, but
:17:28. > :17:32.that is a political issue not what the court should be thinking about.
:17:33. > :17:38.The judges in the High Court 's well vilified by some of the press as
:17:39. > :17:43.enemies of the people. Obviously the 11 Supreme Court justices, is it
:17:44. > :17:46.difficult for them thinking that they may be perceived as being
:17:47. > :17:56.political and this? You wonder what might be coming their way if they
:17:57. > :18:01.find against the government on this. Looking at that personal contacts,
:18:02. > :18:07.whether they had any Europhile links. You do one day about that. I
:18:08. > :18:12.think that these 11 justices are the most senior judges in the land, they
:18:13. > :18:14.have top hides and I think they will decide the issues on the law and
:18:15. > :18:24.will not be swayed by what the papers are saying about them or I
:18:25. > :18:26.any links or if their wife for instance we did something in
:18:27. > :18:32.relation to the referendum. They would be swayed, they're listening
:18:33. > :18:37.to the arguments. Good to hear from all of you, once again. On day three
:18:38. > :18:41.of the hearing at the Supreme Court we will hear for the Scottish
:18:42. > :18:45.Government from the Lord Advocate arguing that the Scottish parliament
:18:46. > :18:50.Sud have a say and potentially a veto on the Article 50 two going and
:18:51. > :18:55.the triggering of the whole of Brexit process. We will also hear
:18:56. > :19:01.more from Lord Pannick QC, arguing that it is Parliament, the UK
:19:02. > :19:06.Parliament here at Westminster that must trigger article 15. Much more
:19:07. > :19:12.to come from the Supreme Court, the now that is it me. Goodbye. -- that
:19:13. > :19:19.that is it funny. The secret life of Britain's grey
:19:20. > :19:23.seals is being investigated off the coast of Northumberland.The
:19:24. > :19:26.seals are being filmed underwater as scientists study their behaviour
:19:27. > :19:28.and attempt to better understand why so many pups in the seal population
:19:29. > :19:33.off the Farne Islands are dying.