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Article 50 challenge: An autopsy of the Supreme Court livestream

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What did we learn, who stole the show, and who is going to win

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To some, it was no OJ Simpson. But, overall, I think the Brexit Supreme Court case has been pretty fun.

There was that time Lord Sumption used an incredulous raising of his eyebrows to wither a QC; there was that moment the Daily Mail did a shocking expose on how ‘judges know people who publicly supported Remain and have worked at organisations where other employees within those organisations have criticised Brexit!’ (eye-opening stuff); or when people noticed that Lord Pannick sounds like ‘panic’ and hilarity ensued.

But there have also been some moments of deathly seriousness.

The fact Lord Neuberger had to begin the case by noting death threats had been made against parties within the action really did unmask the current aching cracks at the heart of the United Kingdom’s constitutional order. Parties arriving flanked by bodyguards reminds us of the very real price that people like Gina Miller are having to pay for legitimately taking this action — and it goes far deeper than the £60,000 she has needed to pay to protect her life.

Edging away from these more sinister elements of the case, let’s plunge ourselves full-faced into the excitement of it all.

The main protagonists

Stepping up to the mound to bat against the first pitch of the World Series, a member of the local softball team.

It’s fair to say the justices reacted with an underarm throw to attorney general Jeremy Wright QC, who, having been cruelly called a “a third-rate conveyancing lawyer”, genuinely did a decent job.

It was notable that he went unquestioned by the justices. Only when the government’s slugger stepped up to the plate did the curve balls start flying and James Eadie QC was really pushed by Lord Sumption eyebrow-acrobatics. *Extended baseball metaphor over*

Now, for an admitted legal pipsqueak like myself, it is completely ridiculously for me to make criticisms of what are incredibly qualified and accomplished lawyers, to who I couldn’t hold a candle. And yet, here I go again.

The attorney general of Northern Ireland is called John Larkin, and by all accounts he had a disaster. It couldn’t have happened to a better man (see his attempt to invalidate all equalities legislation in Northern Ireland because it didn’t allow Christian bakers to discriminate against a gay-marriage-supporting customer). At the Supreme Court, Larkin was doggy paddling in an Olympic pool, causing me to laugh heartily and obnoxiously in his general direction.

Then Lord Pannick, for the claimant, began to speak. The words whirled around him, like light reflecting off the water — a thing of beauty, disguising its inherent, captivating power. The gentle rise and fall of his voice lulled you back to laying upon a lilo in a Spanish villa’s pool.

In other words, he did law real good.

The government’s arguments

Wright began by saying that “parliament can look after itself”. This is unbelievably bizarre, and akin to arguing that a tough guy shouldn’t have the protection of the criminal justice system. But the law does not apply differently depending on the strength or otherwise of the victim. Equally, constitutional law principles apply regardless of how powerful the beneficiary of those principles is.

Another of their arguments was that the foreign policy prerogative can be used to change domestic rights because there are already examples of this happening. Eadie and Wright pointed to how UK ministers within the Council of the European Union, for instance, can alter EU laws and rights by acting within the prerogative on the international plane.

But this is nonsense.

Firstly, it is an extreme simplification of how rights are adapted through the Council; it isn’t a matter of a UK minister acting alone, in fact they could vote against or for a change and be overruled. Saying that a minster contributing to a collective decision making process on the international plane is analogous to a Secretary of State using the prerogative to take the UK out of the EU on his own isn’t sustainable.

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As well as being very different vehicles, they’re proposing to do two very different things. As Lord Mance puts it, there’s a “huge difference” between changing the rules of the club and deciding to leave the club. For the former, the domestic impact that stems from that collective decision also travels through a path which is parliament-endorsed — the ‘time to time’ provision within the European Communities Act 1972. In contrast, Article 50 notification’s domestic impact would not be travelling down a parliament-endorsed path; no statute has endorsed such an action having domestic impact.

To simplify this, it’s like saying a path is travelable by everyone if it is travelable by anyone — a jogger can run down a motorway because a car can. Well, no, not only are the vehicles of travel entirely different, but the car’s passage on that path is explicitly legally permitted whilst the passage of the jogger on the motorway is not. The jogger can’t justify his action by pointing to the actions of a car.

The claimants’ arguments

In terms of the long list of counsel involved, outside of my disappointment that the Scottish Lord Advocate did not turn up in full brave heart regalia and face paint and begin his submissions with a guttural cry of ‘FREEDOM’, there is the performance of Helen Mountfield QC for the People’s Challenge which crystallised the complex issues and expertly spread bountiful amounts of scorn upon the government’s case.

Immediately after came Manjit Gill QC. Gill’s voice electrified the courtroom air, as it thrust a genuine anger at the government’s argument into the proceedings. A strong start it was to stare straight in the eyes of the justices and declare with beautiful theatre that “hard cases make bad law — but this is not a hard case!” It was a massively different approach, and his role appeared to be to highlight the impact of the government’s intended actions on vulnerable people. He injected his argument with emotion, ensuring the very real consequences for European Economic Area (EEA) children living in the UK was at the forefront of everyone’s mind — a captivating image when set against a backdrop of complex, legal fencing:

Be ready to pack your bags and go — it is that stark…we are going to use you as a bargaining chip.

He exquisitely painted the bleak reality at the heart of an astute legal point: leaving the EU exposes EEA-born children living here to criminal liability and expulsion as soon as the withdrawal occurs which, according to the government, could legally happen without any substantive parliamentary input. Making something a criminal offence which previously was not without reference to parliament is an obscene breach of parliamentary sovereignty, and putting it in these terms urgently and persuasively increased the gravity of the consideration the justices must make. Lord Neuberger seemed to enjoy this submission, with its energy and force of emotional importance; he would interject with supportive clarifications and couldn’t have been quicker to grant Gill a few extra minutes to develop his argument.

Overall, my coveted ‘Favourite Supreme Court Advocate of the Miller Case’ gong goes to Manjit Gill QC, who paired his legal ripping apart of the government’s case with genuine and convincing exasperation at the weakness of what they were arguing, picking up what Eadie has said and discarding it with disgust — “just a complete nonsense!”

His final words deafened those of Eadie and will continue to reverberate within the justices’ heads, long after the week of the hearing:

This is no time to turn a flexible constitution into a slippery one.

What we learned

Outside of the fact that Lord Sumption really ought to sell his own range of ties?

Well, what has been clear is the diversity problem at the bar and judiciary. It is one thing knowing the facts (only 13% of QCs are women; only 5.9% of all judges are BME; only 6% of all barristers are from a working class background), but when you see a high profile case such as this being livestreamed and almost everyone is white, the vast majority of those in the first stream of rows are male, and nearly every one of the advocates and Supreme Court justices sound like a Downton Abbey extra, it hits home in a very visceral way. It’s not something capable of being dealt with in this article, but it’s worth noting.

We were also reminded that this was a case which, on the law, the government really shouldn’t have appealed. The difference in the amount of questions asked of Pannick and Eadie must not be construed as Supreme Court bias — it’s reflective of the gaping holes in the government argument, which were exposed by the High Court judgment and were incapable of being plugged before the appeal.

By the time Eadie was making his final reply on the last day of the hearing, the justices had begun playfully batting his argument around like a bear would do with its food — a justice casually turned to Eadie and asked him “isn’t that just a Jury Point (‘one that had no logically persuasive force but might influence a jury which is not too much concerned with logic’)?” Eadie looked back in horrified amazement, and frantically assured them it was nothing of the sort. “Now, there’s nothing wrong with a jury point if it’s a good one” gleefully contributed another justice. The bench erupted with laughter; Hale chimed in by noting that “well, we’re the size of a jury”, which was both accurate and hilarious. They chuckled while Eadie grimaced, the laughter splitting through the seriousness of his argument like a hot gavel through butter. His argument evaporated into the ether, like the government’s chances had, long before.

‘Law but a poor player’

Overall, nothing across the four days has shaken my belief that the government will lose this appeal and I am happy to stand by my prediction that it could be unanimous.

I think on the devolved issues there will be a split, and it will be fascinating — I’m particularly in love with the argument about the Good Friday Agreement (see Joshua Rozenberg’s Legal Cheek article). But the reaction of The Telegraph, the Daily Mail and gutter politicians like IDS and Farage is equally as predictable.

With that in mind, I’ll quickly note that this is the latest instalment in a series of articles I’ve written on Article 50 for Legal Cheek. I ended up commandeering a famous Shakespeare quote for each, but for this article, and for this topic, it was more difficult. I have found the whole legal battle fascinating but the reaction to it has been a fever pitch of nastiness; a crescendo of vitriol. As such, I will end on the only Shakespeare quote, slightly adapted, that I felt spoke to this fall out:

[The law is] but a walking shadow, a poor player, that struts and frets his hour upon the stage, and then is heard no more; it is a tale told by an idiot, full of sound and fury, signifying nothing.

Michael Walker is a law graduate from the University of Cambridge. He has been offered a training contract.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

25 Comments

Anonymous

“but when you see a high profile case such as this being livestreamed and almost everyone is white…”

Thanks for the virtue signalling Michael. Now we know what a great moral person you are.

I confess however I can’t get worked up by seeing a room full of white people given:

(a) 90% of the population is white; and
(b) being a non-racist who doesn’t judge people by the colour of their skin, I don’t think that people being white is a matter for concern.

almosthippy

Thanks for the douche-bag signalling.

You have taken a component of a complex sentence out of context, made it exclusively about one tiny part of his argument and then pointed out what a complete bell-end you are. “Oh… I’m so non-racist I have to tell you and then say I don’t see an issue with anything in the world because I’m so fair minded… And I’m so ‘colour-blind’ that if I was asked to describe someone to the police I wouldn’t even mention their skin colour because I’m such a non-racist”. Get over yourself.

I personally take heart that a white, male, Cambridge grad notices that a room where almost all the key players are middle class, white and male is probably not representative of UK society.

And it’s closer to 86% white.

Anonymous

I couldn’t care less if a room is representative of UK society. All I care about is whether they do a good job.

Also, don’t attribute fake quotes to me (or anyone) and then respond to it. It just makes you look hysterical and irrational.

Anonymous

You didn’t address (or address) the entirety of the writer’s comments on diversity. Care to proffer your perspective on the point that the “vast majority of those in the first stream of rows are male”?

I think the writer’s point on diversity is valid. If you accept that there should be equality, there should be equality on all fronts. Ideally, the bench (and room) should be represented by 50% men and 50% women, with a smattering of ethnic minorities.

It’s one thing to say you’re colour blind, but I hope you do not believe ethnic minorities share the same experiences (and views) as white middle-upper middle class males.

Anonymous

The writing in this article is pretty bad. Once Michael’s writing has matured (no doubt after sustained evisceration during his TC), he will be emailing Legal Cheek asking for this article to be taken down so nobody sees it when they Google his name when he is looking for a new job.

Anonymous

“I write for my own kind
I do not pitch my voice
That every phrase to be heard
By those who have no choice:
Their quality of mind
Must be withdrawn and still,
As moth that answers moth
Across a roaring hill. ”
John Hewitt

Trumpenkrieg

“Parties arriving flanked by bodyguards reminds us of the very real price that people like Gina Miller are having to pay for legitimately taking this action”

Spare us the yiddisher theatricality. She’s coming to court surrounded by hulking bodyguards because she’s a parvenue who wants to make the most of het 15 minutes of fame. If it wasn’t the case, security would not be visible. £60K is pennies to these global financial parasites anyway.

Anonymous

LC are you kidding? How is this overtly racist comment (“yiddisher theatricailty”) still live?

John White

Nigel Farage has bodyguards just for fun and giggles, doesn’t he? I don’t approve of the hating on Gina Miller, at the same time, what kind of idiot is she to think she could drive her chariot into the middle of a country riven by the bruising Referendum campaign, start sticking her spear in, and not tick EVERYONE off? Now she says parliament voting to approve article 50 wasn’t good enough, because it was a motion, not a full Act, and her “crusader point of principle” starts to far more clearly look like what it is, an agent of plutocracy trying to game the process to keep her class in control and power… a hero at the dinner party, for sure, but the price she is going to pay is forever getting “the look” outside of SW1: no matter HOW much she pays on bodyguards!

Totally inappropriate comments about diversity in this article, as others have already noted, people who think virtue signalling is a good idea, simply don’t understand how distasteful and provocative it is to a populace fed sick up of being told they are not good enough for our more “refined” and enlightened betters.

IF the government loses this case, it will be because they didn’t want to win, because the actual legal argument regarding Royal Perogative is a dozy, we leave by the path we went in, at every stage we entered ever greater union (while spinning lies and deciets to get away with it) by royal prerogative confirmed either by referendum or by parliament afterwards, this whole situation is squarely the fault of Cameron for a) holding the referendum in the first place (hehehe) b) Losing, and not triggering article 50 before resigning on June 24th, as he promised he would… but what can we expect from him and then furthermore, on the shoulders of Theresa Delay not triggering article 50 on her first day in the job… one could almost suspect a remain lingering cabinet has been waiting for Clinton to win the presidency to back us staying in the single market… Ooops! And Miller wonders why the MP’s overwhelmingly backed article 50 one day after Italy placed a ticking bomb under the Euro…

Spelling pedant troll annoys John White

It’s p *r* erogative

John White

Actually I loved that “Spelling pedant troll”: I have to respect that you are honest! And if such refined trolling as your own, is the only response I can get, then I do of course know, I’m arguing on solid ground. If I can see the blimmin obvious, what is the more learned portion of our societies excuse, for pretending they cannot? 😉

Anonymous

…an agent of plutocracy trying to game the process to keep her class in control and power…

If you are trying to indicate that Miller represents the plutocracy and is trying to keep the UK in the EU, I think you have the wrong end of the stick. Being in the EU is more likley to protect us against globalisation and plutocrats. Those campaigning for LEAVE were just looking for more personal power, not less.

Anonymous

“Good Sh*t” – Plato

Anonymous

Drivel.

Phil McCracken

Parvenu.

Anonymous

Manjit Singh QC was not a good performer. Eadie may have had a crap case but his advocacy was better than Pannick’s.

Upset

Oh? Who made you Lord Chief advocacy critic?

Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

Awww! Me triggazzzz!!!!

Adam

I think you must have misinterpreted Day 4 of the hearing Michael.

It’s certainly not going to be unanimous; Lord Reed will back the Government and I suspect Lord Carnwath as well. Lord Sumption could go either way.

Eadie made some great points on incorporation in relation to the ECA 1972 and Lord Reed took the Lord Hoffman R v Lyons [2002] UKHL 44 para 27 argument straight to him in his questioning (It’s the statute not the Treaty that forms part of the law of the land).

It does as Lord Sumption noted, alter the constitutional question from being about rights to a question about sources of law.

The ECA 1972 implements and operates the Treaties (as defined) in the UK by extending the corpus of law which operates in the UK under section 2(1) – a new source of (EU/International) law. Thus the rights under the Treaties were never transposed by the ECA 1972 into law which Parliament has enacted. They subsist under the Treaties alone, international law that the Crown has created, not Parliament, by exercising the treaty making prerogative.

Lord Reed put to Miss Mountfield when referencing the Ex Parte Fire Brigades Union case the question that if the rights were created by the Crown (in Ex Parte Fire Brigades Union – the criminal injuries compensation scheme created under the prerogative), was it not also right that the Crown could and should be able to take them away? She answered yes and this was a point taken by Eadie on Day 4 and is highly significant.

As to the EPPA 2002 – this implements the right of election to the European Parliament under the Treaties, it’s not a new right since it could not exist absent the Treaties.

The language of ECA 1972 is not the language of the creation of law, but the recognition of an existing body and corpus of law, and its concomitant rights and obligations.

One only has to examine the position of an unincorporated treaty to understand what the effect of the ECA 1972 is:

– An unincorporated treaty will not be recognised and available in law.
– An unincorporated treaty cannot be enforced, allowed and followed.
– Judicial notice cannot be taken of an unincorporated treaty.
– The matter will not be justiciable.

The principle derived from The Case of Proclamations 1610 does not extend as far as International Law, since that would be an extremely broad interpretation of the constitutional principle, utterly lacking in nuance.

So there is absolutely room for distinguishing in the present case and the Government was right to make its appeal.

Again, there was a really great point by Eadie in relation to withdrawal from the EFTA treaty before going into the European Community in 1973.

I also have to say I was supremely unimpressed with the Article 50 non-incorporation point made by Lord Pannick who seemed to be saying that effectively only directly applicable and directly effective rights are incorporated by the ECA 1972 which runs entirely contrary to Section 2(1) – “All such rights, powers, liabilities, obligations and restrictions” — Article 50 being a treaty obligation….

If you think that this is a slam dunk against the Government, I wouldn’t put too much money on it, Michael. Miller & Santos etc might win but its certainly not going to be a 11-0 finding.

Cicero says...

Far too erudite for a comment on an LC article by a man who “has been offered a training contract” (whether at Macfarlanes or McDonalds is not specified).

As for calling IDS a “gutter politician”, whether you agree with his politics or not, IDS has been an unflashy parliamentarian, doing what he considers best for the country and doing it for a fraction of the money commanded by Lord Pannick.

The author is also getting carried away with his virtue signalling on diversity; Lord Pannick is from a very humble background. He rose through attending a Grammar School to academic eminence as a Fellow of All Souls and then onwards and upwards at the Bar.

Adam

A training contract gained no doubt off the back of “I went to Cambridge”; Not many diverse people at Oxford or Cambridge.

I’d love to know how many law (and history) graduates from Oxford and Cambridge have parents who work in manual and semi-skilled occupations because I’m certain Michael isn’t one of them.

It’s also really encouraging to know this highly ‘educated’ prospective solicitor starts a sentence with a subordinating conjunction such as “But”.

More evidence of a self-selecting and self-serving industry is evident in this article. I’m sure he has more A* than me though.

Anonymous

Only an ignoramus or a pedant believes that there are rules about starting sentences with “But” which must be strictly obeyed.

Adam

Entitled? – No
Brat? – Not really
Arrogant? – Yes

Your highly dismissive tone both in comments and this article reveals a somewhat typical arrogance and presumption. Not all demonstrate it incidentally, one of my friends who is a Barrister at 1 Hare Court and went to Cambridge doesn’t.

Posting an article you wrote for The Independent, which wouldn’t similarly post the spewings of a University of Leeds graduate (for example) on a similar subject, only serves to reinforce the exorbitant privilege that attending Oxbridge commands.

Moreover, I am somewhat concerned that you insist that standard rules of syntax and grammar should not be observed as a lawyer? Particularly given the central importance that language plays in the Law…

However rest assured Michael, if you think I am a pedant, you wait until you get into practice; You haven’t seen anything yet.

I’ve no doubt you are bright and will end up making a great lawyer, but please do tone down the emotive language you use to dismiss other people’s views.

Anonymous

I just posted the article – I didn’t make any of the other anonymous comments in the comment section – I don’t call people ignoramuses, not just because it makes you an ass, but because I can’t spell it. all the best

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