Day 3 Brexit at the Supreme Court

Hello, from the Supreme Court on day three of this hearing on the Brexit

legal challenge. Gino Miller, the investment fund manager whose claim

that Parliament should have a say on the triggering of article 50 of the

Lisbon Treaty, the whole Brexit process, that claim is at the centre

of this case. -- Gina Miller. The Metropolitan

Police announced they had arrested a man in connection with allegations

of malicious online communications against her, of racially aggravated

online communications. Her barrister completed his arguments to the

Supreme Court that it is Parliament that should have a say in triggering

Article 50, and he looked at the wording of the referendum act last

year, that paved the way for the EU referendum. One has an act of

Parliament that simply says there shall be a referendum. It says

nothing more, and what your lordship is putting to me is that that is

sufficient to overturn, if I'm otherwise right, what is a

fundamental constitutional principle, but the Government, the

Executive, lacks power on the international plane to set aside an

act of Parliament, 1972 act, which is nowhere mentioned in the 2015

legislation. That's the first point. A fundamental constitutional and

support is to be removed as an implication, and I would

respectfully submit that that would be a very surprising proposition. It

is not surprising that Parliament has not expressly addressed the

question of whether ministers can use prerogative power in order to

nullify a statutory provision, the principle is so basic that one would

not expect Parliament expressly to address the question. So I say, the

2015 act is an act of political significance, it is entirely neutral

on the issue before the court as to whether or not the Minister has

power to notify. The so-called great repeal Bill does not assist the

appellant. There is no such Bill at present. The court cannot proceed in

my submission on any assumption as to what Parliament would or might do

with a great repeal Bill. It was put -- the court cannot assume that the

great repeal Bill will repeal the 1972 act. With respect, we agree. It

may be active, it may be rejected. Come what may, the act of

notification commits the United Kingdom to leaving the EU, with the

consequence for a statutory -- statutory rights that we have drawn

attention to. Echoing those arguments, we heard from Dominic

Chambers QC, who represents another of the claimants in this case, Mr

Chambers went back centuries, right back to the Bill of Rights, and the

moment that Parliament became supreme. The doctrine itself was

forged in the fires of the battlefields of the 17th-century

England. And it arose on the basis of the clash between crime and

Parliament for supremacy. At the culmination of the glorious

Revolution of 1688, the Bill of rights was enacted. Now, the

doctrine itself long predated the Bill of Rights. But it's in the Bill

of Rights that the doctrine finds its legislative expression. We have

the heading of the Bill of Rights, and then suspending power. The

pretended power of suspending laws, or the execution of laws by legal

authority without consent to Parliament is illegal. Lates

dispensing power, that the Brisbane -- pretended power or the exception

creation of laws by legal authority, as it has been exercised of late, is

illegal. -- the execution of laws. Articles one and two are clear in

their terms. No ifs, no buts, no exceptions. Legislation enacted by

Parliament is supreme, and the Executive cannot act to undo that

which Parliament has done. That which Parliament has granted, only

Parliament can take away. That was Dominic Chambers QC. After he spoke

in the afternoon, the argument switched to the impact of

devolution, and whether Scotland, Wales and Northern Ireland should

have a say in the Brexit process. And we heard, on the half of the

Scottish garden -- Government, from the Lord Advocate, arguing that the

Scottish parliament should be consulted, because he said

withdrawing from the European Union would have an impact on the powers

of Hollywood. In a macro directly affecting European law in policy

areas will lapse. -- Holywood. Legislation enacted by the Scottish

Parliament which depends for the operation on the subsistence of

applicable European law will become potentially ineffective, for example

if the regulations which deal with the administration of the Common

Agricultural Policy. And other regulars -- legislation which cross

refers to EU law will have to be considered from the point of view of

whether it can operate, or can operate as intended when those laws

are no longer apply. And at a constitutional level, withdraw from

the European Union will affect a significant change on the

legislative competence of the Scottish parliament and the

Executive competence of the Scottish Government.

Well, there are also claims that the Northern Ireland Assembly should be

consulted, and on that, we heard today from David Schofield QC and

Ronan Lavery QC. The Northern Ireland Act confers rights under EU

law on Northern Ireland citizens. It does so by providing that the

legislative and Executive branches of the Northern Ireland

administration have no competence and no power respectively to act in

a way which is contrary to EU law. In our submission, such an

alteration of the devolution settlement in Northern Ireland

cannot be affected by the Executive alone. Acting by means of the Royal

prerogative. To do so offends the legal principle that the law cannot

be altered by means of the provocative alone, that much less we

say can a constitutional statute or indeed as -- that would require

clear words even at a later statute for it to be implied, repealed or

become otiose. The UK Government's contentions on the extent of its

prerogative power are with respect Cavalier, perhaps in this context

with both a small C and a large one. In respect, of the respect with

which the EU treaties will have on the delicate balance in Northern

Ireland. Our position goes further than my

friend, in fact in some respects is contrary to it. Because we say that

as a matter of the Constitution of the United Kingdom, it would be

unconstitutional to withdraw from the EU without the consent of the

people of Northern Ireland. We say that for two reasons, first of all

that being part of the EU is part of the constitutional settlement, which

in some respects overlaps with the arguments made by my learned friend.

But we say secondly that there has been a transfer of sovereignty by

virtue of the Good Friday Agreement, the Downing Street Declaration, and

section one of the Northern Ireland Act. So that in fact the people of

Northern Ireland now have sovereignty over any kind of

constitutional change, rather than Parliament. The notion that

Parliament is supreme, but it has primacy, is now gone,. Let's take

stock of where we are at the end of day three. Watching it all with me,

our panel of legal experts. A barrister from Essex Court Chambers,

professor Alison Young from Oxford university, and the BBC's Clive

Coleman. Jeremy, let's start with you on the issue of Scotland and

Northern Ireland. A switch of focus in a sense for the Supreme Court

here. Absolutely. Let's take Scotland, they have intervened in

this appeal in the Supreme Court, and that is a further spanner in the

works if you like for the Government. We heard the Lord

Advocate speaking on behalf of the Scottish Parliament, saying today

that because of a constitutional convention, the so-called single

convention, the Scottish Parliament has to be consulted and has to be

discussed with, before the Parliament over the road in

Westminster can vote on an act in this issue. So we might end up with

this extraordinary situation where you have Parliament at Westminster

voting on article 50, in the wake of a Scottish vote in the Scottish

parliament which says we don't want to trigger article 50. Professor

Young, it is another complication for the Government. Yes, but we have

to put it in its context, most of the arguments rest on Jena Malone

winning, -- Geno Miller. If the Government wins on this point and

says you only need prerogative power, all those additional

arguments don't come into play. -- Gina. We haven't necessarily heard

all the arguments, but most of them are resting on, you must have the

legislation first. So if they win the first-born, these aren't a

problem at all. Clive, you are listing to those arguments, how

persuasive do you think the arguments were? The Lord Advocate

said at one point Scotland doesn't have a veto. It left you wondering,

what is this convention, is it just a courtesy? There is an act of

Parliament being passed by Westminster, the you just go to

Scotland and said, we would like your consent. If they do not give

it, you go ahead and roll on through. It was a kind of curious

admission for him to make. They don't have a veto, he is right about

that. So he couldn't dress it up something it wasn't, it made it seem

like a relatively easy bar for the Westminster Parliament across.

Jeremy, going back earlier on in the day, we heard from Lord Pannick and

Dominic Chambers. How persuasive do you think they have been in those

arguments? Lord Pannick. Very well with the interventions from the

justices this morning. He is acting for the lead claimant, saying that

the divisional Court got it right below. Mr Chambers then stood up, he

is also acting for another one of the claimants. He made some

interesting points today, saying the significance of this might all be

lost on what he called the man on the Clapham omnibus. We are familiar

with that passenger. What it means is that the average members of

Parliament -- public may be confused about why we are having this case at

all in the light of the Brexit decision. But he said you did the

varying power of an act to actually change the use of the prerogative

and make sure that actually we comply with our constitutional

requirements. Professor young, I know you're an absolute expert on

public law. But as we being alluded to there, the man on the Clapham

omnibus might be confused by why the Supreme Court is dealing with this

issue at all, having have a referendum were 17.4 million people

voted in favour of leaving the EU. We keep coming back to this point

that we had the referendum act in 2015, battered and impose an

obligation on the Government to respond in a particular way, so we

are now trying to interpret what that means. You had the mansion from

Dominic Chambers about this wonderful person, he was a big

constitutional scholar who suggested Parliamentary sovereignty. And the

argument was that people might be politically sovereign, but as far as

the law is concerned we see they will sue the enactment of an act of

Parliament. The question pushed against that is to say yes, you can

read it in that way, but now we're having lot more referenda, can we

say if Parliament say we're going to have a referendum, does that mean

people have their say more directly and we just did the Government. That

is a real thorny issue that the justices of the Supreme Court are

going to have to think about and think through. Clive, after three

days of arguments on both sides, what are your overall impression is?

In a macro let's go back to the man on the Clapham omnibus. If you'd

been listening to the large -- last bit of Lord Pannick, he'd be in no

doubt what this case was about. Lord Pannick was almost brutal and

effectively he was saying the Government's case is built on

something that isn't there, it's built on something, wording that has

to be implied into an act, when the wording is not there in black letter

law. And he looked at the 20 15th referendum act and said, look, not

only is it kind of neutral on the issue of whether power is being

given to minister to trigger article 50, he said it is just not there at

all, and to apply that into an act where it doesn't exist would be to

violate constitutional principles, big constitutional principles, the

Prince and 11 being that it is that place over there, it is Parliament

which makes laws. -- the principal one. And only Parliament can wipe

those away, and you cannot implied wording into an act when it just

isn't there. It was pretty clear for the man on the Clapham on the bus

and anybody there who wanted to listen. Thank you very much for all

of you. We've had three days of argument; one more day to go of this

crucial Brexit hearing at the Supreme Court. The 11 Supreme Court

justices will then have plenty of thinking to do. We want as you get

their judgment until the New Year, we think sometime in the middle of

January. That's it from me here the Supreme Court. Goodbye. -- we

weren't actually