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Brexit legal challenge: Lord Chief Justice condemns ‘abusers’ targeting claimants

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Access to justice will not be compromised by threats

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It’s day two of the Brexit High Court challenge, and the Lord Chief Justice kicked off proceedings by issuing a stark warning to people abusing the case’s parties.

Counsel for lead claimant Gina Miller (who was in attendance today) told the court on Thursday his client had been subjected to “abuse” because of her involvement in the contentious judicial review challenge. Viewers of Legal Cheek’s Friday Facebook livestream will recall protesters gathered outside the court and handed out leaflets to passers-by accusing both Miller and her lawyers of trying to block Brexit. Instructed law firm Mishcon de Reya has also reportedly been on the receiving end of abuse.

Though there were no anti-lawyer protesters outside the High Court when Legal Cheek arrived this morning, the Lord Chief Justice’s message suggests the abuse is continuing.

Sat between his colleagues Sir Terence Etherton and Lord Justice Sales, he lambasted the abusers’ actions and said “the full vigour of the law” will be used to ensure the public has access to the court system.

In terms of substantive submissions, first up this morning was Matrix Chambers’ Helen Mountfield QC, acting for the People’s Challenge — a claim crowdfunded by Devereux Chambers tax specialist Jolyon Maugham QC.

In a similar vein to the claimant counsel that addressed the bench on Thursday — Lord Pannick QC and Dominic Chambers QC — Mountfield said triggering Article 50 without a parliamentary vote would be unlawful.

The European Communities Act 1972, she submitted, shows that parliament wills for UK citizens to benefit from the rights, and be subjected to the obligations, of the European treaties. The Crown does not have the legal power to remove these rights or obligations as a matter of domestic law.

Next to take the stand was Henderson Chambers’ Patrick Green QC, acting for intervening party Fair Deal for Expats — a pan-European group which recently issued separate legal proceedings against the President of the European Commission Jean-Claude Juncker.

In and among some confusion about the contents of the judges’ bundles, Green told the court that there are “rights at stake that parliament cannot itself replace” on our withdrawal. The 1972 act, he said, made a structural change to our constitutional settlement, conferring certain powers that pre-1972 were parliament’s only to the EU (think Costa v ENEL). These powers are parliament’s to exercise or to confer.

Green also stressed it is quite extraordinary that a decision of both such incredible constitutional importance and such ambiguity has come to court in this way. In cases of less significance, the court is well aware what is being judicially reviewed. In this case, we haven’t seen and don’t know what the decision even is.

At 11am, it was the turn of Manjit S Gill QC from No5 Chambers to address a hushed courtroom 4 (which, fun fact, seats 76 people). Representing two interested parties who are both minors and known only as A and B, the immigration specialist focused on the impact of our withdrawal on the rights of children.

The moment the UK leaves the EU, the rights of children from European Economic Area countries living here “all fall away.” They will be in the UK without leave and given that there’s no mechanism in place to give them the necessary leave, these children will be in the UK illegally. Prerogative powers, Gill argued, cannot be used to expose children to criminal liability and Article 50 cannot be used unless steps have been taken to protect affected parties.

Gill’s submissions conclude the case for the claimants. The next day and a half will see attorney general Jeremy Wright QC lead for the defence, so stay tuned.