:00:00. > :00:27.Hello, from the Supreme Court on day three of this hearing on the Brexit
:00:28. > :00:34.legal challenge. Gino Miller, the investment fund manager whose claim
:00:35. > :00:39.that Parliament should have a say on the triggering of article 50 of the
:00:40. > :00:43.Lisbon Treaty, the whole Brexit process, that claim is at the centre
:00:44. > :00:49.of this case. -- Gina Miller. The Metropolitan
:00:50. > :00:52.Police announced they had arrested a man in connection with allegations
:00:53. > :01:01.of malicious online communications against her, of racially aggravated
:01:02. > :01:04.online communications. Her barrister completed his arguments to the
:01:05. > :01:10.Supreme Court that it is Parliament that should have a say in triggering
:01:11. > :01:14.Article 50, and he looked at the wording of the referendum act last
:01:15. > :01:20.year, that paved the way for the EU referendum. One has an act of
:01:21. > :01:24.Parliament that simply says there shall be a referendum. It says
:01:25. > :01:32.nothing more, and what your lordship is putting to me is that that is
:01:33. > :01:36.sufficient to overturn, if I'm otherwise right, what is a
:01:37. > :01:43.fundamental constitutional principle, but the Government, the
:01:44. > :01:49.Executive, lacks power on the international plane to set aside an
:01:50. > :01:55.act of Parliament, 1972 act, which is nowhere mentioned in the 2015
:01:56. > :02:01.legislation. That's the first point. A fundamental constitutional and
:02:02. > :02:03.support is to be removed as an implication, and I would
:02:04. > :02:10.respectfully submit that that would be a very surprising proposition. It
:02:11. > :02:16.is not surprising that Parliament has not expressly addressed the
:02:17. > :02:21.question of whether ministers can use prerogative power in order to
:02:22. > :02:28.nullify a statutory provision, the principle is so basic that one would
:02:29. > :02:35.not expect Parliament expressly to address the question. So I say, the
:02:36. > :02:41.2015 act is an act of political significance, it is entirely neutral
:02:42. > :02:51.on the issue before the court as to whether or not the Minister has
:02:52. > :02:58.power to notify. The so-called great repeal Bill does not assist the
:02:59. > :03:03.appellant. There is no such Bill at present. The court cannot proceed in
:03:04. > :03:13.my submission on any assumption as to what Parliament would or might do
:03:14. > :03:17.with a great repeal Bill. It was put -- the court cannot assume that the
:03:18. > :03:28.great repeal Bill will repeal the 1972 act. With respect, we agree. It
:03:29. > :03:32.may be active, it may be rejected. Come what may, the act of
:03:33. > :03:37.notification commits the United Kingdom to leaving the EU, with the
:03:38. > :03:48.consequence for a statutory -- statutory rights that we have drawn
:03:49. > :03:51.attention to. Echoing those arguments, we heard from Dominic
:03:52. > :03:57.Chambers QC, who represents another of the claimants in this case, Mr
:03:58. > :04:01.Chambers went back centuries, right back to the Bill of Rights, and the
:04:02. > :04:09.moment that Parliament became supreme. The doctrine itself was
:04:10. > :04:15.forged in the fires of the battlefields of the 17th-century
:04:16. > :04:24.England. And it arose on the basis of the clash between crime and
:04:25. > :04:28.Parliament for supremacy. At the culmination of the glorious
:04:29. > :04:34.Revolution of 1688, the Bill of rights was enacted. Now, the
:04:35. > :04:38.doctrine itself long predated the Bill of Rights. But it's in the Bill
:04:39. > :04:47.of Rights that the doctrine finds its legislative expression. We have
:04:48. > :04:53.the heading of the Bill of Rights, and then suspending power. The
:04:54. > :04:58.pretended power of suspending laws, or the execution of laws by legal
:04:59. > :05:04.authority without consent to Parliament is illegal. Lates
:05:05. > :05:07.dispensing power, that the Brisbane -- pretended power or the exception
:05:08. > :05:16.creation of laws by legal authority, as it has been exercised of late, is
:05:17. > :05:20.illegal. -- the execution of laws. Articles one and two are clear in
:05:21. > :05:27.their terms. No ifs, no buts, no exceptions. Legislation enacted by
:05:28. > :05:34.Parliament is supreme, and the Executive cannot act to undo that
:05:35. > :05:39.which Parliament has done. That which Parliament has granted, only
:05:40. > :05:44.Parliament can take away. That was Dominic Chambers QC. After he spoke
:05:45. > :05:48.in the afternoon, the argument switched to the impact of
:05:49. > :05:52.devolution, and whether Scotland, Wales and Northern Ireland should
:05:53. > :05:59.have a say in the Brexit process. And we heard, on the half of the
:06:00. > :06:01.Scottish garden -- Government, from the Lord Advocate, arguing that the
:06:02. > :06:04.Scottish parliament should be consulted, because he said
:06:05. > :06:11.withdrawing from the European Union would have an impact on the powers
:06:12. > :06:20.of Hollywood. In a macro directly affecting European law in policy
:06:21. > :06:27.areas will lapse. -- Holywood. Legislation enacted by the Scottish
:06:28. > :06:31.Parliament which depends for the operation on the subsistence of
:06:32. > :06:38.applicable European law will become potentially ineffective, for example
:06:39. > :06:41.if the regulations which deal with the administration of the Common
:06:42. > :06:47.Agricultural Policy. And other regulars -- legislation which cross
:06:48. > :06:52.refers to EU law will have to be considered from the point of view of
:06:53. > :07:00.whether it can operate, or can operate as intended when those laws
:07:01. > :07:02.are no longer apply. And at a constitutional level, withdraw from
:07:03. > :07:07.the European Union will affect a significant change on the
:07:08. > :07:09.legislative competence of the Scottish parliament and the
:07:10. > :07:16.Executive competence of the Scottish Government.
:07:17. > :07:19.Well, there are also claims that the Northern Ireland Assembly should be
:07:20. > :07:27.consulted, and on that, we heard today from David Schofield QC and
:07:28. > :07:34.Ronan Lavery QC. The Northern Ireland Act confers rights under EU
:07:35. > :07:38.law on Northern Ireland citizens. It does so by providing that the
:07:39. > :07:41.legislative and Executive branches of the Northern Ireland
:07:42. > :07:47.administration have no competence and no power respectively to act in
:07:48. > :07:49.a way which is contrary to EU law. In our submission, such an
:07:50. > :07:52.alteration of the devolution settlement in Northern Ireland
:07:53. > :07:59.cannot be affected by the Executive alone. Acting by means of the Royal
:08:00. > :08:03.prerogative. To do so offends the legal principle that the law cannot
:08:04. > :08:13.be altered by means of the provocative alone, that much less we
:08:14. > :08:17.say can a constitutional statute or indeed as -- that would require
:08:18. > :08:25.clear words even at a later statute for it to be implied, repealed or
:08:26. > :08:29.become otiose. The UK Government's contentions on the extent of its
:08:30. > :08:34.prerogative power are with respect Cavalier, perhaps in this context
:08:35. > :08:43.with both a small C and a large one. In respect, of the respect with
:08:44. > :08:48.which the EU treaties will have on the delicate balance in Northern
:08:49. > :08:53.Ireland. Our position goes further than my
:08:54. > :09:00.friend, in fact in some respects is contrary to it. Because we say that
:09:01. > :09:09.as a matter of the Constitution of the United Kingdom, it would be
:09:10. > :09:16.unconstitutional to withdraw from the EU without the consent of the
:09:17. > :09:21.people of Northern Ireland. We say that for two reasons, first of all
:09:22. > :09:25.that being part of the EU is part of the constitutional settlement, which
:09:26. > :09:32.in some respects overlaps with the arguments made by my learned friend.
:09:33. > :09:38.But we say secondly that there has been a transfer of sovereignty by
:09:39. > :09:43.virtue of the Good Friday Agreement, the Downing Street Declaration, and
:09:44. > :09:49.section one of the Northern Ireland Act. So that in fact the people of
:09:50. > :09:52.Northern Ireland now have sovereignty over any kind of
:09:53. > :10:00.constitutional change, rather than Parliament. The notion that
:10:01. > :10:08.Parliament is supreme, but it has primacy, is now gone,. Let's take
:10:09. > :10:15.stock of where we are at the end of day three. Watching it all with me,
:10:16. > :10:21.our panel of legal experts. A barrister from Essex Court Chambers,
:10:22. > :10:27.professor Alison Young from Oxford university, and the BBC's Clive
:10:28. > :10:31.Coleman. Jeremy, let's start with you on the issue of Scotland and
:10:32. > :10:37.Northern Ireland. A switch of focus in a sense for the Supreme Court
:10:38. > :10:41.here. Absolutely. Let's take Scotland, they have intervened in
:10:42. > :10:45.this appeal in the Supreme Court, and that is a further spanner in the
:10:46. > :10:49.works if you like for the Government. We heard the Lord
:10:50. > :10:55.Advocate speaking on behalf of the Scottish Parliament, saying today
:10:56. > :10:58.that because of a constitutional convention, the so-called single
:10:59. > :11:04.convention, the Scottish Parliament has to be consulted and has to be
:11:05. > :11:07.discussed with, before the Parliament over the road in
:11:08. > :11:12.Westminster can vote on an act in this issue. So we might end up with
:11:13. > :11:16.this extraordinary situation where you have Parliament at Westminster
:11:17. > :11:19.voting on article 50, in the wake of a Scottish vote in the Scottish
:11:20. > :11:26.parliament which says we don't want to trigger article 50. Professor
:11:27. > :11:32.Young, it is another complication for the Government. Yes, but we have
:11:33. > :11:38.to put it in its context, most of the arguments rest on Jena Malone
:11:39. > :11:42.winning, -- Geno Miller. If the Government wins on this point and
:11:43. > :11:46.says you only need prerogative power, all those additional
:11:47. > :11:51.arguments don't come into play. -- Gina. We haven't necessarily heard
:11:52. > :11:57.all the arguments, but most of them are resting on, you must have the
:11:58. > :12:01.legislation first. So if they win the first-born, these aren't a
:12:02. > :12:09.problem at all. Clive, you are listing to those arguments, how
:12:10. > :12:12.persuasive do you think the arguments were? The Lord Advocate
:12:13. > :12:19.said at one point Scotland doesn't have a veto. It left you wondering,
:12:20. > :12:22.what is this convention, is it just a courtesy? There is an act of
:12:23. > :12:25.Parliament being passed by Westminster, the you just go to
:12:26. > :12:30.Scotland and said, we would like your consent. If they do not give
:12:31. > :12:38.it, you go ahead and roll on through. It was a kind of curious
:12:39. > :12:44.admission for him to make. They don't have a veto, he is right about
:12:45. > :12:51.that. So he couldn't dress it up something it wasn't, it made it seem
:12:52. > :12:54.like a relatively easy bar for the Westminster Parliament across.
:12:55. > :13:05.Jeremy, going back earlier on in the day, we heard from Lord Pannick and
:13:06. > :13:11.Dominic Chambers. How persuasive do you think they have been in those
:13:12. > :13:16.arguments? Lord Pannick. Very well with the interventions from the
:13:17. > :13:19.justices this morning. He is acting for the lead claimant, saying that
:13:20. > :13:24.the divisional Court got it right below. Mr Chambers then stood up, he
:13:25. > :13:29.is also acting for another one of the claimants. He made some
:13:30. > :13:33.interesting points today, saying the significance of this might all be
:13:34. > :13:39.lost on what he called the man on the Clapham omnibus. We are familiar
:13:40. > :13:44.with that passenger. What it means is that the average members of
:13:45. > :13:48.Parliament -- public may be confused about why we are having this case at
:13:49. > :13:55.all in the light of the Brexit decision. But he said you did the
:13:56. > :13:59.varying power of an act to actually change the use of the prerogative
:14:00. > :14:04.and make sure that actually we comply with our constitutional
:14:05. > :14:09.requirements. Professor young, I know you're an absolute expert on
:14:10. > :14:13.public law. But as we being alluded to there, the man on the Clapham
:14:14. > :14:18.omnibus might be confused by why the Supreme Court is dealing with this
:14:19. > :14:23.issue at all, having have a referendum were 17.4 million people
:14:24. > :14:28.voted in favour of leaving the EU. We keep coming back to this point
:14:29. > :14:31.that we had the referendum act in 2015, battered and impose an
:14:32. > :14:34.obligation on the Government to respond in a particular way, so we
:14:35. > :14:44.are now trying to interpret what that means. You had the mansion from
:14:45. > :14:49.Dominic Chambers about this wonderful person, he was a big
:14:50. > :14:52.constitutional scholar who suggested Parliamentary sovereignty. And the
:14:53. > :14:56.argument was that people might be politically sovereign, but as far as
:14:57. > :14:59.the law is concerned we see they will sue the enactment of an act of
:15:00. > :15:03.Parliament. The question pushed against that is to say yes, you can
:15:04. > :15:09.read it in that way, but now we're having lot more referenda, can we
:15:10. > :15:12.say if Parliament say we're going to have a referendum, does that mean
:15:13. > :15:17.people have their say more directly and we just did the Government. That
:15:18. > :15:20.is a real thorny issue that the justices of the Supreme Court are
:15:21. > :15:24.going to have to think about and think through. Clive, after three
:15:25. > :15:28.days of arguments on both sides, what are your overall impression is?
:15:29. > :15:33.In a macro let's go back to the man on the Clapham omnibus. If you'd
:15:34. > :15:38.been listening to the large -- last bit of Lord Pannick, he'd be in no
:15:39. > :15:41.doubt what this case was about. Lord Pannick was almost brutal and
:15:42. > :15:45.effectively he was saying the Government's case is built on
:15:46. > :15:49.something that isn't there, it's built on something, wording that has
:15:50. > :15:55.to be implied into an act, when the wording is not there in black letter
:15:56. > :15:59.law. And he looked at the 20 15th referendum act and said, look, not
:16:00. > :16:02.only is it kind of neutral on the issue of whether power is being
:16:03. > :16:08.given to minister to trigger article 50, he said it is just not there at
:16:09. > :16:14.all, and to apply that into an act where it doesn't exist would be to
:16:15. > :16:17.violate constitutional principles, big constitutional principles, the
:16:18. > :16:23.Prince and 11 being that it is that place over there, it is Parliament
:16:24. > :16:28.which makes laws. -- the principal one. And only Parliament can wipe
:16:29. > :16:31.those away, and you cannot implied wording into an act when it just
:16:32. > :16:35.isn't there. It was pretty clear for the man on the Clapham on the bus
:16:36. > :16:39.and anybody there who wanted to listen. Thank you very much for all
:16:40. > :16:43.of you. We've had three days of argument; one more day to go of this
:16:44. > :16:47.crucial Brexit hearing at the Supreme Court. The 11 Supreme Court
:16:48. > :16:59.justices will then have plenty of thinking to do. We want as you get
:17:00. > :17:02.their judgment until the New Year, we think sometime in the middle of
:17:03. > :17:03.January. That's it from me here the Supreme Court. Goodbye. -- we
:17:04. > :17:05.weren't actually