Day 4 Brexit at the Supreme Court

Hello from the Supreme Court, the highest court in the land on the

final day of this historic Brexit hearing were the 11 Supreme Court

Justices took their seats for the last submissions of this hearing,

including that of Richard Gordon QC, on behalf of the Welsh government,

arguing that because of devolution, the Welsh Assembly should be

consulted on the triggering Brexit. Where there is no existing

prerogative power, no question of whether Parliament has abrogated or

revise the power arises. This is elementary. A child of six could

understand this point. That is very well put! I say that a child of six

could understand this point because if you tell a child cannot go out

and play in the garden but can clean the House, it has no power to then

go out in the garden. If you haven't got a particular power to do

something, because to do so would violate a prior constraint, you

simply don't have the prerogative power, so to accept that there is a

power does mean that there is not a treaty making power to dispense with

laws or revisit statutory schemes or two crucify human rights. And all

the recent events have nothing to do with this case, in particular, and I

say it respectfully and particularly, the referendum Act of

2015 was absolutely nothing to do with the legal issues in this case.

The referendum result was discussed in argument yesterday. It is a

statute that has died, fulfil this purpose. You cannot revive a court

-- corpse by tearing up the death certificate. You cannot revive the

2015 Act and give it a separate purpose which is two, in some way,

from the moment of statute. Because to do that is to give a statute of

the power and not a prerogative power, and there's nothing in the

2015 Act that can say anything sensible about the prerogative. That

was Richard Gordon QC, for the Welsh government. Then the Supreme Court

heard from Helen Mountfield juicy, representing the people's challenge,

campaigning group arguing that there must be Parliamentary legislation to

trigger article 50 of the Lisbon Treaty. There is no prerogative

power to change the law. There was nothing to abrogate. Submissions are

as Mr Gordon suggested, and in effect to say that the government

can change the constitution in a radical way, because Parliament has

never said that it can't, or to put it perhaps at the more facetious

level, on the last day of the case, Mr Eadie's submissions are the

equivalent of arguing that because none of the attempts to catch the

lock this monster have succeeded, the lock this monster still roams

free. -- Loch Ness Monster. The Supreme Court heard some impassioned

argument from the QC representing nationals of the European Economic

Area and their children, who can live in the United Kingdom because

of European law. First thing one has to keep hold of is that hard cases

make bad law. This case is not hard. Some people are trying to make it

very, very hard. The reason why they are trying to make it very hard, and

putting their talisman in the position of contortions well they

say one thing one minute and another thing the next is because nobody

ever thought that the 2015 Act was ever intended to confer any

prerogative power at all. And the reason for that is, or one reason

for that maybe, when I single body, I mean the government and the

legislature, -- when I say the body, one reason for that maybe this. It

is a political point made by those who voted Leave. Nobody ever thought

that there was going to be a Leave vote. That's why there was no idea

that there was going to be any need to consider the prerogative. That is

why the statute is drafted as it is, in a limited way. This will be

something that I will come through in due course. I accept the point

that the notion of a flexible constitution can be useful but in

this case it does something far more fundamental than that. The court

might be facing some amount of pressure, as an 11 bench court, but

this is now time to turn a flexible constitution into a slippery one,

and lets go of its bedrock fundamentals. -- this is no time.

Towards the end of the final day of this hearing, the Supreme Court then

returned to the central arguments that they have been listening to

this week, and those revolve around whether it is Parliamentary

legislation that is needed to trigger article 50 or, as the

government believe, simple prerogative powers exercised by

ministers, and that was the argument that once again, was put in closing

submissions by the government Counsel James Eadie, juicy. We do

not accept the power to alter the law of the land or common rights by

exercise of the prerogative. We do assert a specific power to notify

under article 50 sub two and so to start the process of withdrawing,

notwithstanding that that will result in changes to domestic law,

which was introduced to implement those treaties. It is plain, we

submit, that Parliament can intervene. I use the word intervened

deliberately because that was the word used in the case by Lord

Oliver. Parliament can intervene in a particular context to set up

domestic law and to cater for its alteration. As it is understood,

Parliament has indicated its view and has done so clearly... The House

of Commons. The Queen in Parliament has not. Because the House of Lords

has not. The Queen in Parliament has not. There is no statute. The

argument is that if you are wrong, in your interpretation of the Act...

My lord I respectfully submit that it is significant but not as it

were, directly legally binding. That was not the question. Do you accept

that if you're wrong on the interpretation of the 1972 Act, then

the 2015 Act and other subsequent acts will not help you, and this

motion doesn't help you. I do, on that premise, I do. It bears

repeating that we are not here to overturn the result of the EU

referendum. The ultimate question in this case concerns the process by

which that result can lawfully be brought into effect. As we have

heard, that question raises important constitutional issues and

we will now take time to ensure that the many arguments which have been

presented to us, orally and in writing, are given full and proper

consideration. Having said that, we appreciate that this case should be

resolved as quickly as possible and we will do our best to achieve that.

Thank you, again, everybody. The court is now adjourn. That was the

end of this four they hearing. As the 11 Supreme Court judges rose to

consider their judgments, the businesswomen Jeanna Miller, who

brought this case in the first place, that it is Parliamentary

legislation that is required to trigger Brexit, she spoke to us

about what it is like Debbie at the centre a case of such enormous

constitutional -- what it is like to be at the case -- the centre of a

case of such enormous constitutional importance. The bank of cameras

coming in, the whole thing has been mentally and physically quite

draining. I feel like I am back in the first year of law college

listening to lectures, one after the. Then there was the enormity of

sitting in the Supreme Court and hearing my name being mentioned, it

being referred to as the case. It is quite surreal to take in. It is not

everyday. It is important to realise the enormity of the case and the

consequence it will have, because when they quote case law, the Miller

case will be one of those case laws that is coated in future. The

enormity of that was quite... Maybe I have for the wrong reasons but

hopefully it is for the right reasons because the enormity of the

case, in that it would set a precedent so that the government

could use prerogative to take away rights from the domestic plane, is,

it really does come home when you sit and hear all the argument is.

Gina Miller, the businesswomen at the centre of this case. We have

also been hearing from the Attorney General, Jimmy White, the

government's most senior law officer. MPs voted overwhelmingly to

have this referendum and, as you know, as recently as yesterday

evening, Parliament has been continuing to have a say about this,

so Parliament is, was and will be engaged in this process. But, in the

end, what we have been saying is that there are powers in the hands

of the government to do this. We've heard a lot about the royal

prerogative. It sounds like a very outdated concept. In truth, this is

something that is a crucial part of the modern constitution, and we need

those powers to do the job that government is giving to do. They are

powers of great constitutional significance, but they also help us

to do an effective job as an executive government. Now that they

hearing is over, let's take stock of where we are. I am joined by a panel

of legal experts who have been listening to every word of the

hearing. Professor Alison Young, of Oxford University, Jeremy Brier,

barrister at Essex Court genders, and our home affairs correspondent,

Dominic Casciani. Dominic, your impressions having sat and listened

to the almonds on this last day? This last day was like the three and

a half that preceded it. It had the feeling of in the making. History in

the making and Amana which was represented of what the Supreme

Court is supposed to be about, about taking the law, analysing it in a

calm way. The 11 justices are the embodiment of that phrase, keep calm

and carry on. They took this incredibly difficult issue about how

we progress Brexit, and with all the acrimony across the UK about how

would that should be happening, and try to break it down into very basic

principles of, if this is going to happen, what is the way it should

happen? Is it ministers, is it Parliament? How do we progress this?

It kept out of the politics. Lord Neuburger, the president of the

Supreme Court, said this is not about the politics of Brexit, they

are not changing that, he wanted to break it down to a position where

they are deciding how it should be carried out. That is a question that

has been put before them by Gina Miller and the other claimants in

the first place appeal by the government. This is the issue they

have to deal with. Look at the Strawberry circumstances we've had

in the last six months, a prim minister falling, another Prime

Minister under pressure, acrimony in the House of Commons, although some

of that seem to roll back last night with the boat. Here, it is about

keeping things calm and simple. Jeremy Brier, how do you see the

last four days? What will be going through the minds of the 11 Supreme

Court judges now they have to think about their judgment? It has been an

extraordinary four days in court which we have been following

closely. We started off with James Eadie for the government presenting

a strong, concise and careful case on day one about how the prerogative

power exists, and thou about how the European communities Act is just a

conduit for those international law rights to flow down into domestic

law, but saying that domestic statute doesn't actually create

rights in and of itself, but then later on we heard Lord Pannick. He

gave a very theatrical, very bold and very clear, very erudite set of

submissions where he basically said no, no, the claimants is right here,

and actually we need a Parliamentary Act to undo the rights that have

already been created. So we have seen ups and downs and then today,

James Eadie has got the last word and got the reply. Those 11 justices

about to die just all of this, they got to consider all the cases, the

authorities, the precedents that have been discussed. We have had one

years worth of constitutional law experts -- lectures in four days so

they have a lot of reading to do, but ultimately we will get one

judgment or set of judgments in January from those justices, and

that'll give us the final word on this matter, which is the mechanism

for how article that he has to be triggered, and I think we will all

be very pleased and the public will be pleased, whatever the outcome,

that we have closure on matter. Professor Young, this isn't just

about Brexit and triggering Brexit, it is about the British

constitution, isn't it? Absolutely. This is about the relative powers of

the government and Parliament. Even going back to these cases in the

17th century where they were discussing the distribution between

the Crown and Parliament. Most of these Crown powers have now been

passed on to be exercised by the government. It is the same issues

but different people. I have been thinking carefully about how our

Constitution works, how powers are distributed and recognising that it

is the job of the court to say what the law is, and at the end of the

day they will make a declaration as to whether they do or do not have a

proper power to trigger article 50. The people who voted in the

referendum will say, we are supreme, we are the people, we voted in a

referendum and what we say should just go. Yes they are the people and

they vote for MPs and MPs Act on their behalf in Parliament. What the

people voted on is, do we leave the European Union or do we stay in?

That vote said we want to leave the European Union. As we kept saying

came there was silence about how we do that in our Constitution. So we

have been thinking about, does this silence mean we have a prerogative

power all we need to have legislation? Dominic, lastly,

briefly, how do the 11 judges come to their judgment? What do they do

now? First they have a cup of tea, they are probably all sneaking out

of the building, out of the back. What they do in cases, this is all

11 together for the first time, they will get together next week and sit

down around the table, chaired by Lord Neuburger, and starting with

the youngest of them, Lord Hodge, who is a sprightly 63, he will give

his opinion on what this week amounts to, whether he is with the

government or the original claimants in this case. He will bend around

the conference table in order of youngest of two eldest until Lord

Neuburger has a sense of what the direction of travel is. It could be

that all 11 say they are one way or the other. Then it is a slam dunk,

an easy exercise to start writing up their judgment. It is more likely

that there will be splits, justices focusing on one point or saying that

this is more important even though they agree with the old point, and

in essence what Lord Neuburger will have to do is work out how to divide

up the work. One of them will be nominated as the lead writer of the

draft. If it is a clear decision between them. If not, more than one

will be writing drafts. They will be e-mailing each other over Christmas,

wherever they are around the UK, sharing their strategy, changing

each other's views and try to come to a consensus. There are two big

things we will have to deal with along with the main question of how

we trigger Brexit. The devolution questions which came up over the

last 24 hours are really novel. There was a lot of interest in

there. They might spend a lot of time thinking about that. Secondly,

there's clearly a sense from some of the justices that they want to

explore the very nature, as we have all said, the British constitution.

Where does law beside? If they go down that route then this could be a

long, complicated process. Thank you. That is the end of the hearing.

Four days that have been fascinating, absorbing, sometimes

impassioned arguments, sometimes pretty impenetrable. It has been an

extraordinary event of constitutional -- constitutional

significance and we await the judgment of the 11 Supreme Court

Justices, which should be in mid-January. That is it from me at

the Supreme Court. Goodbye. Now it's time for Meet the Author,

with Jim Naughtie. You can try to understand

the brain in many ways,