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