Day 2 Brexit at the Supreme Court


Day 2

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They've also have the opening argument for the opposing Kates.

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Every night for the next few evenings we will give you the house

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of the day. Hello and welcome on the Supreme

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Court here in central London, the highest court in the land. It has

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been day two of this historic Brexit legal hearing. 11 Supreme Court

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Justices hearing the case, hearing the argument about whether it should

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be the government through its prerogative powers that triggers

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Article 50 of the Brexit process, all whether it should be Parliament.

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Well, day two began with more documents being delivered to the

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court, all the justices were given additional papers by the government

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team will stop Jean Miller and her legal team arrived once again at the

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Supreme Court, she is the businesswoman who brought this case

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in the first place, saying that Parliament has to decide on

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triggering Article 50. -- Gina Miller. Then, the 11 justices of the

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Supreme Court took their seats. More paperwork on the desk, more

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questions in their minds as they continued these historic

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proceedings. First up, today was James Eadie, QC continuing his case

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for the government arguing that the government should be able to use its

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prerogative for executive powers. Powers that are vermin and from the

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powers of the kings and queens of old. -- powers that are remnants.

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That they should be able to trigger Article 50 rather than Parliament.

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On day one James Eadie took some pretty tough questions from the

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Supreme Court justices. That was just the same day two, perhaps even

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tougher questions he faced. I'm perfectly content... You prepared to

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give to opposed answers to the same question. Will have to decide which

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question we accept. -- which Anza wakes that. My lord, we do not

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except that it is legally irrelevant but we do except that you can't

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proceed on the assumption that Parliament will necessarily

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legislate to introduce or pass the great repeal Bill because that

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depends on what it decides to do. That law will remain in place,

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presumably but it will be affected by, for example, those who are

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beneficiaries of those laws will not be able to act this court or any

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other court to affair the question to the Luxembourg court in order to

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ensure that Arnold continues to keep pace with EU law. So, it will be

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modified, Winter? Except that, you're right. In some of my extent

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my answer is the same answer that I give to the election to European

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Parliament point, it is the same point. The constitutional

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significance to the first part of your question, perhaps as to be

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thought about, it is owned out of true, swathes and swathes, and we

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respectably agree, most of European law is made to directives and

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regulations, they will remain. The question, therefore, will be, back

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to joint effort, perhaps but this time in relation to implementation.

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The question will be how is the government going to shape the new

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domestic law. The answer to that question, almost inevitably it might

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be thought, is policy area by policy area. It is said that the government

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giving Article 50 notice is an affront to parliamentary

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sovereignty, because Parliament has created rights and only it can them.

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My submission is that our case fully respects and offers no front to

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parliamentary sovereignty. -- offers no affront. Some thoughts on that...

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Parliament has indicated those matters on which it is required to

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be involved further. It has specified when, in relation to what

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and how it is to be involved. The scheme is as described. Government

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giving the notice under Article 50 is entirely, it might be fought

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expressly, in accordance with that scheme and its specific

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consideration with Article 50. Thirdly,... Parliament is already

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deeply involved and unsurprisingly involved in the whole process of

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withdrawal. Of course, now and hereafter it can choose whatever

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level of involvement it wishes to have in those matters. There have

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already been debates concerning withdrawal, there was an opposition

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debate in October and there was another one set down when state. It

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is perhaps of some interest that an notification has either haughty, or

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any party in parliament called for primary legislation to be enacted in

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advance of the giving of the notice. Put another way, more contentiously

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perhaps, Parliament does not seem to want at the obligation that

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divisional course has thrust upon them. Fourthly, we submit that the

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apparent simplicity of the position that the respondents put forward

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represents we submit a serious constitutional trap. The principle

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and its application in a context such as the president is at best

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highly controversial, that is not, we submit, a proper premise, all

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basis for a presumption as a tool for imputing intention to

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Parliament. By applying that broad principle, outside its proper

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confines, we submit, that it would take the court over the lion, a lion

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that it has been assiduous to respect, between depredation and

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judicial interpretation. -- over the line. The courts would be proposing

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a new control of the most serious kind in a highly controversial and

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carefully considered, by Parliament, area. That was James Eadie then in

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the afternoon it was the town of Lord Pannick in the afternoon. He

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argued that the government simply cannot figure score 50 with its

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prerogative powers, it asked to be Parliament. -- Article 50. The core

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of his argument was that it all goes back to 1972 and the European

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Community is at, he said that enshrined European law into British

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law and it conferred European rights on British citizens. Since

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Parliament, in 1972, compared those right and British citizens only

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Parliament can take those rights away again. In other words, particle

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has to trigger Article 50 and the Brexit process. The argument

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however, if correct would mean that the 1972 act, far from having a

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constitutional status would have a lesser status than any other acts, a

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letter status then the dangers dogs act. Kos on their argument,

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Parliament has made this fundamental constitutional change to domestic

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law only for as long as the executive does not take action on

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the international plane to terminate the treaty commitments. We say, in

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the context of an act of Parliament, which expressly states, in section

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two open bracket for close bracket that its decisions take... It would,

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with respect, be quite extraordinary if nevertheless the 1972 act could

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be set at naught by the actions of a minister acting without

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Parliamentary authority. It is inherently implausible that

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Parliament intended in 1972 when it created this constitutional reform,

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when it recognised this new source of legal rights and duties that it

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intended that it could all be set at naught by the exercise of

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prerogative powers. And in the left-hand column, halfway down you

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can see the Minister for Europe and in the second paragraph, in line

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five, he says he's going to start by addressing amendment 16 and he makes

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the point that he's not surprised that the members should be moved. He

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says that Amendment 16 does not make in the context of the Bill will stop

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the legislation is about holding a vote, it makes no provision for what

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follows the referendum is advisory, except sure, except. That is simply

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the point I want to make and I think it is entirely consistent with the

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contents of the act. It did not address at any consequence, far less

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did it address the process by which the UK would leave the EEE to, if

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the people voted as they did to leave. -- leave the European Union.

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In particular it didn't address the respective roles of Parliament are

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ministers and my submission, very simple submission, is that what ever

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the proper legal scope of prerogative power in this context,

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it is entirely unaffected either 2015 act. Now Lord Pannick as you

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heard, did set out seven reasons why he believes that is the case and why

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the Supreme Court justices should accept that. If you want more detail

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on 07 reasons, well you can go to our BBC website. Our home affairs

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correspondent has been at the hearing throughout and he has

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tweeted all the detail on those reasons, one by one. So, you can

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read them on the website. Let's discuss the performances of James

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Eadie QC for the government and Lord Pannick QC forward Gina Miller. I'm

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joined by our panel of legal experts. Is deemed illegal brains

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almost as bright as those 11 Supreme Court justices. We have a professor

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from Durham University, barrister from Essex Court Chambers we have

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professor Alison Young from Hertford College Oxford University and the

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BBC's only goal affairs correspondent. First of all, Lord

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Pannick replying to James Eadie for the government had to get an? I

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think he gone very well and has a very different approach. James

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Eadie, there had been a day and a half of very detailed legal analysis

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really very sophisticated quite theoretical. But he reduced the

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government's case to a series of short points. Essentially saying

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these prerogative, these executive powers they could be legitimately

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used to trigger score 50, if Parliament had wanted to limit them

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some way they would have done so they didn't do than to 2015 act when

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they have the opportunity do so. Really issuing a warning to the

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judges not to overstepped the line into Jude is. He closed that case.

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But then Lord Pannick got up and he was almost incredulous. He

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effectively said that what the government case's is all about...

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The 1972 act that brought these rights in duties is a mighty oak

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tree act and it would be inconceivable to think that

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Parliament would have thought that at the stroke of a minister's pen,

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using these executive powers, that could all be effectively right away.

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He took that incredulity to the afternoon and seem to take the

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number of the justices with him. Alison Young, what did you make of

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his argument? I like the way he's focusing on broader constitutional

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principles asking is to think about the reality. He is basically trying

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to reversed the way we're looking at it. Saying, you can't say we have

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this broad prerogative power to enter into treaties, there is a

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principle that says you can't use the power to reduce domestic rights

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are instead you have to look at would you be removing domestic

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rights and if so you don't have the power to do that. That is almost

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like telling the government's argument on its head. It was really

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interesting to see him do that and swap it around and get is the focus

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on what it means to be part of Europe. Is it like any of the

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treaty, or was the European Union something different because of its

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constitutional importance? I think it is a really interesting issue

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that the courts to be thinking about. Jammy, we know that Lord

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Pannick is quite a polished legal format a bit of a star, really, did

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he live up to his billing on this day as well? As we're saying just

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before lunch before it is about to start we said he is really want to

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watch in this case. There was a Senna more moment when he stood up

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because he's a great Speaker and a great legal and public law expat.

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He's going to set out the lead claimant's case with real clarity.

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He did just that. He set out this real clash the idea that I1 hand the

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European communities act is a new legal order. It heralded this

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constitutional revolution. That is in stark, class green contrast to

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what James said this morning who said it was just a conduit. We have

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this divider looks like the justices are with Lord Pannick. Would you

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agree with that, can we tell which way the justices are leading on

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this? Yes, on the whole they showed more... He was put under the cosh in

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the way the James Eadie was. This afternoon he took chunks out of the

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government's argument. I like the image of the mighty tree he

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developed it at some length. The idea that when the parliament did

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some existing of them they created in UK law and new legal order that

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gave was this huge bundle of rights on the EU law. The idea that could

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be swept away by a government's pen. The communities act burned-out have

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higher status... Yes, having said all of that people will be watching

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this having voted in the referendum, may be voting to leave and thinking

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what is all of this about I voted to leave why is this even in the

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Supreme Court? Absolutely and this is why we need to be very clear

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about what is in the political sphere and what is in the legal

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sphere this is a constitutional case all about the legal mechanisms of

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how Article 50 should be triggered. Does it need to be triggered

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following an act of Parliament or coat just be triggered by the

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government. It is not about rerunning the Brexit argument. And

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both sides in court today have been cleared to say that. Alison, Lord

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Pannick said at one stage that the referendum was an act of political

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significance but not of any relevant to the courts. I think what he's

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doing is drawing up the difference between politics and the law. As we

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said Elliott, they could've said in the referendum act that they will

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empower the the legislative... What is essentially trying to say is cars

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of that there is no legal obligation, but that doesn't mean to

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say the referendum is not important, it is politically important, but

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that is a political issue not what the court should be thinking about.

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The judges in the High Court 's well vilified by some of the press as

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enemies of the people. Obviously the 11 Supreme Court justices, is it

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difficult for them thinking that they may be perceived as being

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political and this? You wonder what might be coming their way if they

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find against the government on this. Looking at that personal contacts,

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whether they had any Europhile links. You do one day about that. I

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think that these 11 justices are the most senior judges in the land, they

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have top hides and I think they will decide the issues on the law and

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will not be swayed by what the papers are saying about them or I

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any links or if their wife for instance we did something in

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relation to the referendum. They would be swayed, they're listening

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to the arguments. Good to hear from all of you, once again. On day three

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of the hearing at the Supreme Court we will hear for the Scottish

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Government from the Lord Advocate arguing that the Scottish parliament

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Sud have a say and potentially a veto on the Article 50 two going and

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the triggering of the whole of Brexit process. We will also hear

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more from Lord Pannick QC, arguing that it is Parliament, the UK

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Parliament here at Westminster that must trigger article 15. Much more

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to come from the Supreme Court, the now that is it me. Goodbye. -- that

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that is it funny. The secret life of Britain's grey

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seals is being investigated off the coast of Northumberland.The

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seals are being filmed underwater as scientists study their behaviour

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and attempt to better understand why so many pups in the seal population

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off the Farne Islands are dying.

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