High Court case concludes today
The government has told three of the country’s top judges why Article 50 can and should be triggered without parliamentary approval, but commentators aren’t sure how well the arguments went down.
This week, the Lord Chief Justice, Sir Terence Etherton and Lord Justice Sales have been hearing one of the most important constitutional law cases of our generation in the High Court. The case of Miller is a judicial review challenging the government’s position on the invocation of Article 50, with various counsels for various claimants arguing it cannot be triggered by prerogative power alone.
Submissions for the claimants were laid down last Thursday and yesterday morning, leaving attorney general Jeremy Wright QC to introduce the case for the government (specifically the Secretary of State for Exiting the European Union).
Lawyers were sceptical Wright would be able to hold his own up against the claimants’ legal team — which includes the likes of Lord Pannick QC and Dominic Chambers QC. In fact, when Wright was elevated to the position of attorney general, many lawyers didn’t even know who he was.
However, the profession’s reaction to Wright’s performance has been vaguely positive. Tax specialist and Devereux Chambers barrister Jolyon Maugham QC — who has been involved in crowdfunding for the case — described Wright as “charmingly self-deprecating”.
(Jeremy Wright QC being charmingly self-deprecating it's right to say).
— Jo Maugham QC (@JolyonMaugham) October 17, 2016
One legal journalist suggested Wright, who made silk two years ago, had defied expectations by addressing the legal principles at hand, rather than “just talking politics”.
Jeremy Wright is settling down to some case law. Contrary to some expectations he is not just talking politics. Addressing legal principle.
— Conor James McKinney (@mckinneytweets) October 17, 2016
And that’s despite a reported interruption by a faulty microphone…
The Attorney General has been interrupted by a faulty microphone. Good advertisement for his govt's programme of modernising the courts.
— Conor James McKinney (@mckinneytweets) October 17, 2016
Also getting the thumbs up from the legal twitterati was Wright’s colleague James Eadie QC, a Blackstone Chambers barrister described as a “class act”.
(Eadie is a class act. Barristers's barrister. Just a joy to listen to him).
— Jo Maugham QC (@JolyonMaugham) October 17, 2016
So what exactly was the defendant’s line of argument?
Early on in his submissions (which can be accessed in full here), Wright told the court this judicial review hearing isn’t “a narrow legal challenge directed to the technical procedural matter of notification”. He continued:
In reality, it seeks to invalidate the decision already taken to withdraw from the EU and to require that decision to be taken by parliament.
The withdrawal from a treaty, in Wright’s words, “is for the Crown by use of the prerogative”.
Taking over, Eadie focused on what parliament’s intention is in all this. Once one accepts — he argued — that parliament could leave a prerogative power in the hands of the Crown “to make or to unmake treaties”, then “the only question that remains” is one of parliamentary intention.
While Wright and co may have quietly charmed the live tweeters, it’s unclear whether the same can be said for the judges.
According to Maugham, the court seemed at times “troubled” and “underwhelmed” by the government’s line of argument.
(Court is looking rather troubled by some of these points coming from Govt.)
— Jo Maugham QC (@JolyonMaugham) October 17, 2016
Eadie answers, Prerogative remains to make and end Treaties. Court looks underwhelmed by answer.
— Jo Maugham QC (@JolyonMaugham) October 17, 2016
In a similar vein, commercial law barrister Schona Jolly thought the court seemed “very troubled” by parts of the defence.
(IMHO: Last judicial interventions v interesting on executive removal of rights. Court seems v troubled by this line of govt argument).
— Schona Jolly (@WomaninHavana) October 17, 2016
Even class act barrister Eadie seems to have lost the judges at times.
Lord Justice Sales says that he has "slightly lost the thread of the argument" that James Eadie QC is making for the government.
— Conor James McKinney (@mckinneytweets) October 17, 2016
The hearing concludes today and a decision is expected in the coming weeks.
