Proceedings kick off in suitably dramatic fashion
The Brexit judicial review challenge has started with a bang in the Supreme Court this morning, courtesy of president Lord Neuberger.
Sitting in the middle of the 11-strong bench, the top judge kicked off proceedings by making an unconventional admission:
It is right to record that, at the direction of the court, the registrar has asked all the parties involved in these proceedings whether they wish to ask any of the justices to stand down.
This is an unusual move for a judge to make, one which seems to have been born out of the case’s remarkable context.
In the wake of the High Court’s Miller ruling, the judiciary has been subjected to fierce media attacks. Not only have judges been described as “enemies of the people”, there have been calls for both Neuberger and his deputy president, Lady Hale, to withdraw from the case over claims of judicial bias.
Media area outside the Supreme Court this morning jam packed pic.twitter.com/ysj0vLLzjK
— Legal Cheek (@legalcheek) December 5, 2016
Though the media attacks have been ruthless, it seems both the appellants and respondents didn’t share the sentiment. Addressing courtroom one — and the streams of viewers watching proceedings online — Neuberger continued:
All parties to the appeal have stated that they have no objection to any of us sitting on this appeal.
Before counsel arguments began, the president also revealed he and his colleagues had decided to make a Confidentiality Order. This means there are a number of reporting restrictions attached to the case, including that no one can publish or reveal the first respondent’s home address, the names of former certain claimants and the names of any children who are interested parties in proceedings.
The reason for this, he went on to explain, is:
[L]argely because various individuals have received threats of serious violence and unpleasant abuse in emails and other electronic communications. Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law. Anyone who communicates such threats or abuse should be aware that there are legal powers designed to ensure that access to the courts is available to everyone.
This stark warning echoes the Lord Chief Justice’s address to courtroom 4 of the Royal Courts of Justice when the Miller case was heard at first instance. At this stage, Lord Thomas lambasted actions of anonymous abusers, and said “the full vigour of the law” will be used to ensure the public has access to the courts.
Clearly political and emotional tensions are running high, as was abundantly clear as we arrived at court this morning. Outside the Westminster-based building, protesters gathered with placards and signs, some on a pro-EU double decker bus.
Pro-EU bus outside the Supreme Court this morning with people dressed up as the lawyers/justices – back of bus says 'This one's for Gina' pic.twitter.com/mZ4Safve6Z
— Legal Cheek (@legalcheek) December 5, 2016
Leaflets being handed out outside the Supreme Court this morning pic.twitter.com/p3yMTySymB
— Legal Cheek (@legalcheek) December 5, 2016
But this case isn’t about politics, according to attorney general Jeremy Wright QC (pictured below) anyway. Opening up the appellant’s (the government’s) submissions at just gone 11am, the top lawyer reminded the court this is a judicial review of “great constitutional importance”, and one that has been brought before the courts properly. That said, he believes the invocation of Article 50 by prerogative power — which Miller and co argue is unlawful — is “fully supported by our constitutional settlement.”
Wright went on to say the foreign affairs prerogative is a necessity, “a fundamental pillar of our constitution as a sovereign state.” This prerogative operates in a dualist system, including in the EU context, and is fully compatible with parliamentary sovereignty.
He also told the court that triggering Article 50 by prerogative power is the “logical conclusion” of a process in which parliament has been heavily and continually involved, and parliament will continue to demonstrate its sovereignty throughout the Brexit process. The respondent’s position has been to “stick up for parliament”, but parliament can stick up for itself.
Next up this morning was James Eadie QC, a Blackstone Chambers‘ barrister also acting for the government.
He wanted to make clear the claimants’ argument that the powers in question are a relic of history is incorrect. He said the royal prerogative has “real and continuing value” to the administration of an effective government. While parliamentary intervention is necessary to limit or alter the prerogative, it’s not necessary to keep the power the same — that’s what is being proposed here.
Following a number of interjections from the judges, including Hale’s admission she finds the government’s bundle numbering “confusing”, Eadie dedicated a significant amount of time to exploring the De Keyser case.
Law students may recall this case from their syllabuses. It is an important constitutional law judgment about whether the prerogative can be used to remove rights granted by statute. While Eadie tried to put forward his case based on the argument the High Court reached the wrong decision here, the legal twitterati didn’t seem to share this enthusiasm.
Am I being naive to think that Eadie is scraping the barrel by using De Keyser to argue prerogative power? #brexit #SupremeCourt
— Cherie (@Brianthecat) December 5, 2016
Eadie trying to make this be all about de Keyser's – wholly irrelevant IMO. This case is *not* about whether prerogative removed by Parlt
— Gavin Phillipson (@Prof_Phillipson) December 5, 2016
Even Lord Sumption interrupted Eadie to ask him how an analysis of this case fits into his submissions as a whole.
EadieQC seems to be having a tough time with their Lordships on De Keyser. #Article50
— Tony Hatfield (@tonyhatfield) December 5, 2016
The hearing continues until Thursday. The respondent’s submissions are scheduled to begin tomorrow afternoon.
