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‘There is no going back’: Lord Pannick QC kicks off Brexit legal challenge

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There were protesters dressed as lawyers outside the High Court

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The long-awaited Brexit legal challenge kicked off in the High Court this morning, complete with a star-studded legal team and judicial bench.

In courtroom 4 of the Royal Courts of Justice, three top judges, Lord Chief Justice Lord Thomas, the new Master of the Rolls Sir Terence Etherton and Court of Appeal judge Lord Justice Sales, heard submissions from Lord Pannick QC.

Acting for the lead claimant, businesswoman and British citizen Gina Miller, the Blackstone Chambers barrister told the bench the case was one of “fundamental constitutional importance”.

Walking through the bustling court, this is clear to see. The courtroom was packed out, while the two overflow courts (courtrooms 20 and 28) were also busy.

Outside the iconic, London building — which recently became victim to some creepy graffiti — lawyers, journalists and other interested spectators queued up to enter the court, while protesters gathered outside and handed out leaflets. One read:

Lawyers, hands off our democracy!… [The Miller case] is an outrage against democracy. The Brexit vote is the biggest democratic mandate in British political history. And it must be respected.

Though the political and emotive aspects of the Brexit debate weighed heavy today, Pannick was quick to reassure the court this case isn’t about politics.

According to him, the defendant’s legal team — headed up by attorney general Jeremy Wright QC — is wrong to suggest the judicial review is in any way an attempt by the claimant, Miller, to block Brexit. Instead, the legal challenge is about parliamentary sovereignty; whatever parliament does with this sovereignty is down to parliament.

Later, Pannick told the Lord Chief Justice Lord Thomas, the new Master of the Rolls Sir Terence Etherton and Court of Appeal judge Lord Justice Sales that triggering Article 50 would lead to a loss of rights because of the lapse of the EU treaties. A minister of the Crown has no legal power to remove these statutory rights without parliamentary authority, and it is “no answer” to say parliament may take action and be able to somehow get these rights back in the future. On Britain’s withdrawal:

There is no going back.

EU law fans will be thrilled to know the court was also treated to a whistlestop tour of the supremacy of European law, courtesy of Pannick, featuring cases including Simmenthal and Van Gend en Loos. And yes, Factortame got a mention too.

The hearing continues on Monday and is expected to conclude on Tuesday. It is understood the case will be leapfrogged to the Supreme Court by the end of the year once a decision has been given by the High Court; expect lots more Article 50 derring-do.

64 Comments

Anonymous

KK – this is good, but give us more details!

(24)(2)

Anonymous

What else would you like to know?

(0)(0)

Anonymous

Well if KK was in Court it would be great to hear about some of the following:

(a) some deeper detail of the submissions made by counsel and whether the bench made any interjections;
(b) the input from counsel for the instructed parties would be interesting – were they a silent group or proactive; and,
(c) perhaps even some analysis from the profession and MP’s

All things which would be interesting to the audience of LC

(14)(1)

Katie King

Some more info as requested:

There are a number of claimants in this legal challenge, but this morning’s submissions were made only by Lord Pannick QC (acting for the lead claimant, Gina Miller, who was also in attendance). There were little to no interjections from any of the other barristers.

Pannick, who I thought was very engaging, split his submissions into five parts: Article 50, the EU Referendum Act 2015, the European Communities Act 1972, the legal limits of the use of prerogative powers and then a brief response to the government’s (or rather the Secretary of State for Brexit’s) skeleton argument (which will be expanded upon by the defendant’s legal team on Monday).

The main thrust of Pannick’s argument was that the government has no legal authority to invoke Article 50 without parliamentary approval. Pannick said the issue at the heart of the legal proceedings is not whether the government is “justified” in invoking Article 50, but whether the government has the legal powers in the first place. The answer to this question is no, because the 1972 act confers statutory rights onto UK citizens, and there is no legal authority to support an officer of the Crown taking away statutory rights without parliamentary approval (and there were in fact a number of authorities to the contrary). The bench questioned whether it mattered parliament could legislate these rights back, but Pannick made clear this was irrelevant.

Here is the full transcript from this morning’s hearing if you would like to read it:

https://www.judiciary.gov.uk/publications/santos-and-m-v-secretary-of-state-for-exiting-the-european-union-transcripts/

(45)(2)

Anonymous

Thanks KK, this is good reporting – you should do more of this for LC

(15)(1)

Anonymous

Better than the last court report, in which Katie admitted to playing with her coat at the back due to boredom.

(3)(0)

Anonymous

Or you could tell the truth… crap argument and crap delivery in a shabby cause

(1)(3)

Peter

Can someone please answer the question: If Brexit means Brexit, what does Brexit mean?
From all that I’ve read the mandate given by the vote was to retake sovereignty, stop immigration especially from eastern Europe and put an extra £350m a week into the NHS whilst retaining full access to the single market, freedom of movement for brits and scrapping all those pesky EU rules.
These were the promises advertised. If the government can’t deliver on any of this then there is no mandate.

(3)(0)

Bremain voter of Counsel

Waste of money to try and circumvent the will of the people.

Disgrace.

(17)(68)

Anonymous

Not Amused, is that you?

(2)(0)

Anonymous

It’s more a waste of money because if it goes to a vote, it will sail through. In fact that much has already been confirmed. 1) because parliament has to back up referendums or they are pointless, 2) Labour MPs don’t want an early general election.

This whole case is important, yet pointless at the same time. It might delay Brexit, by anybody hoping it will stop it is in cloud cuckoo land. Theresa May is in way too strong a position, as are the Conservatives in general.

(5)(6)

Anonymous

Not Amused, we know it’s you.

(3)(0)

Anonymous

The referendum was “advisory”, not binding.

(6)(3)

Edward Bernays

oh shut up! They decided to take the peoples advice. Moron! Not even a valid point, you just parrot what you hear on the T.V. Bloody expensive and time consuming consultation. After such a cost you don’t take the advice. Why legislate for a referendum If majority of Parliament remainers?

(0)(4)

Anonymous

What is the will of the people?

(2)(0)

Anonymous

No one is circumventing the will of the people. The point of leaving the EU was so the UK parliament could be supreme was it not? So to then say parliament is not supreme, the executive by way of some antiquated royal prerogative gets to decide is contradictory.

(32)(8)

Anonymous

You’re confusing Parliament being supreme with the idea that Parliament’s will is universally required for state action. The former means (in theory) that there is no higher source of power, something that leaving the EU will help to restore. The latter doesn’t exist as a convention or a doctrine, although prerogative powers are certainly displaced when legislative measures tread on them. The argument here, as I understand it, comes down to whether prerogative powers remain unfettered where a government wishes to undo a treaty.

This ‘line to take’ that’s grown up among the Remainers about Brexit being synonymous with Parliamentary agreement to the UK’s commitments is misleading.

(2)(4)

Not Amused

This does seem to be largely superseded by events:

– yesterday the house confirmed that if there were a vote, it would vote to implement Article 50
– in the last few weeks we have had the announcement of the Great Repeal Bill

Perhaps the narcissists should have engaged in some pre-action correspondence before they decided to waste a colossal amount of taxpayer money …

(9)(19)

Bumblebee

I don’t follow. Pre-action correspondence with whom exactly? Parliament isn’t a party to the litigation.

(10)(2)

Anonymous

Correspondence with the office of the Secretary Of State For Exiting The European Union – that SoS being the defendant.

(0)(4)

Bumblebee

SoS ExEU has no control or say over whether parliament will vote to repeal the ECA 1972. Likewise, if parliament were to be given the power to veto invocation of Article 50, SoS ExEU would have no say or control over parliament’s choice as to whether or not to exercise that power.

More generally, even if SoS ExEU did have such power, that would be irrelevant. Just because unlawful government action might have the same result as lawful parliamentary action, that doesn’t serve to make litigation challenging the lawfulness of the government action redundant.

(2)(0)

Anonymous

How Parliament chooses to vote is neither here nor there. It’s its opportunity to vote that’s at issue.

Your point is fair enough in respect of the first of NA’s: that Parliament (actually s/he said “the house”) confirmed it would vote to trigger Art 50. I agree that that was an event outside the knowledge or responsibility of the defendant SoS.

The second point – about the repeal bill – is very much what correspondence should have covered, and may well have done. And it’s a matter that the SoS is able to speak to. Jo Maugham QC certainly seemed to think it relevant: https://twitter.com/JolyonMaugham/status/782306086170816512

(0)(0)

Not Amused

While I thank you for your support, you should know that finding out that Jolyon Maugham agrees with me is more likely to cause me concern than delight.

Rather like how one should always ask where Eddie Izzard stands on a point politically – and then vote the other way.

(4)(3)

Bumblebee

Don’t worry, NA. Mr Maugham QC doesn’t agree with you. He said if the commitment was ‘made AND DELIVERED’ the Art 50 challenge would be dead in the water.

i.e. He recognises that there is still a chance that parliament might choose not to repeal ECA 1972.

(1)(1)

Bumblebee

I see your point, but parliament may still choose to not repeal ECA 1972 and this would leave the legal challenge alive and kicking. Given the government is planning on invoking Art 50 on 1 April 2017, it simply wasn’t an option for the claimants to wait and see.

(2)(0)

Anonymous

The view of the House will change if the economy continues on its current trajectory. Every time you comment I get the distinct impression that you’ve never been near the Bar.

(7)(0)

Clergs

Shh, this is a secret, but as a regular contributor to the RoF forums, it’s dawning on me that NA is actually Lydia, a similarly deranged character from those messaging boards… Remarkable, really.

(0)(0)

Anonymous

That you clergs? Yeh, Lydia strikes the same sanctimonious tone.

(0)(0)

Anonymous

European Union Referendum Act 2015; an official legislative document announcing Parliament’s intention to turn to the people for an answer as to whether or not leaving the EU was in the interest of the nation. Having done this, Parliament has already had their say, already exercised their sovereignty. Now it’s their job to respect the will of the people.

Also, what utter nonsense about it not being “an attempt to block Brexit”. That’s a conflation of method and motive; the method being used is to question the process, but the motivation of anyone trying to do this is to block Brexit. You can’t block Brexit and then claim you’re not trying to block Brexit.

Furthermore, what is the point of raising issues like rights lost? That’s substantive, relating to the pros and cons of the choices presented (i.e. to leave the EU or remain), which is something for the politicians and people to argue and decide, not the judges. Their role is to determine the legality, not the merits, of the decision. As I’ve already said, Parliament has expressed their intention in an Act of Parliament, the people have expressed their will through the referendum, now the judges should stay out of it and the politicians should obey the will of the populace.

Seriously, what even is this case? Haven’t we got murders and rapists and vandals to prosecute?

(4)(14)

M.

The point of this case? It enables to apply some separation of power of which we have very little anyway, it ensures scrunity.

(8)(0)

Anonymous

After we’ve “taken back control”, presumably we can also scrap these pesky judicial review rights and maybe even also bring in police powers enabling the detention of citizens or lawyers who question the powers/decisions of public officials.

(1)(0)

Anonymous

The people voted, the majority chose to leave so who are we to go against the peoples will. The referendum was one of the largest turn outs in English history and we should respect that. This legal challenge is from the people who are at a disadvantage because of Brexit where as the majority of people are at an advantage. This legal bid is completely going against democracy and no lawyer should be able to challenge it. The people spoke so now let the Priminister act.

(5)(19)

Anonymous

The lawyers aren’t challenging it. Their client is challenging it.

(12)(1)

Anonymous

Those who voted to #Remain also spoke…

(2)(1)

Anonymous

Yeah their is no denying that but why go against the choice of the many just for the choice of the few.

(0)(5)

Denning LJ

Yeah those tens of millions who voted with their brain instead of their arse are some few alright.

You Brexiters are such a bunch of fruitcakes. Who knew the English proles have so much in common with the American rednecks…

(8)(1)

Trumpenkrieg

Brexiters did vote with their brain. Their brains simply arrived at a different conclusion than yours did before voting. Just because you hold certain set of holy givens about the world doesn’t mean you are intelligent.

(1)(8)

Adele

The puherascs I make are entirely based on these articles.

(0)(0)

Anonymous

I think we have trolls in the house.

(5)(0)

Anonymous

This case will answer a significant question of constitutional dynamics – it’s an unprecedented situation which deserves judicial attention. I agree that it may delay the Brexit process, but anyone who suggests this is just an attempt to stop Brexit happening is a moron.

(14)(2)

Anonymous

Brexit is sickening, it’s pissening, it’s revolting, it’s insulting – Jason Genova, 2016

(2)(6)

Anonymous

Fuark, all the unawares…go Genova or go home.

(0)(1)

Anonymous

If people are looking for a blow by blow account follow @jolyonmaugham on twitter. He has tweeted the whole thing with points from counsel and the bench!

(0)(0)

Ff

Best thing that’s happened in the recent history of our country.

Haven’t this lot got anything better to do?
They’re the type of people that meet for a drink on a Tuesday and opt for a soft drink.

Unilever is a sign of things to come.

As a country we’ve got a horrible underbelly of entitlement. Start the manufacturing up, get them all in the factories and working.

Start producing our own and not rely on anyone.

Junior doctors can do one as well, do your job, get paid or do one.

Time to remove this era of entitlement and complacency.

If you don’t like it tough.

(3)(17)

Anonymous

You sir, are a moron.

(9)(1)

Trumpenkrieg

Hear hear! Brexit is a quiet revolution. The ancien regime of cucks, manginas, manlets, feminists, open borders cranks, #RapefugeeWelcomers, race hucksters, institutional opppression-peddlers, out of shape Labour activists with awful BO, pencilnecks, wonks, (((special interest groups))) and other assorted ideological vandals is waking up to a new reality where they can no longer feel entitled to whingeing like toddlers and banging on the table and getting their way every time anything goes against them in politics. Brexit is like Lacan’s Big Other, resurgent and looming, or a stern father figure storming into an out-of-control teenager daughter’s house party, cutting the power supply to the sound system, tipping all the Strongbow down the sink and throwing everyone’s weed down the toilet. The Brexit litigation is the last token piece of resistance from a delusional, isolated elite that knows its old privileges are all but extinguished. And good riddance!

(4)(7)

TT

Love this

(0)(0)

Bremainer

You better stop smoking that shit, it’s clearly damaged your brain.

(5)(0)

Anonymous

Dolt! It’s the first piece of resistance, not the last.

(1)(0)

Trumpenkrieg

So you admit that you are par of a delusional, isolated elite that knows its old privileges are all but extinguished.

(0)(1)

Trinity

A prioocatvve insight! Just what we need!

(0)(0)

Anonymous

I do not understand. Nothing you say means anything. Get who in what factories? How do you think the world works? What did you think you were voting for?

I’m genuinely baffled. Why is Brexit a good thing, from any angle at all? I have not heard one single reason in support of it over the course of the entire campaign and ensuing shitstorm.

Am I feeding the troll?

(1)(0)

Anonymous

I think the issue I have with this, is how Pannick etc are saying this as not political and not about blocking, Yet hasn’t the lead claimant, the fund manager, said she wants to avoid leaving? That seems to let the cat out of the bag.

Either way, and let me say remain was a better outcome for me, even if this goes to parliament, it will get voted through, because voting against it will trigger an election and anhiliation for 50-100 Labour MPs, which is why it won’t get blocked. Trust me on this one.

(1)(1)

Anonymous

A general election may be a good thing for Labour – it brings forward the day when Corbyn will have to stand down.

(0)(1)

Gregory Lauder Frost of the Traditional Britain Group

This post has been removed because it breached Legal Cheek’s comments policy.

(0)(2)

Anonymous

Is anyone else reminded of the Monty Python scene regarding “supreme executive power”???

(0)(1)

Just Anonymous

I am sympathetic to those (like NA) who characterise this simply as an attempt to block Brexit.

I’m sympathetic because that’s patently obviously what the lay clients want.

I mean, come on, does anyone seriously think they went to their lawyers and said, “We’re really concerned about the consequences this decision would have for the doctrines of separation of powers and Parliamentary Sovereignty!”

Of course not. They went to their lawyers and said, “We don’t like this decision. Challenge it!”

And the lawyers duly came up with a legitimate challenge. Now I fully accept that that challenge, as advanced by Lord Pannick QC, has nothing to do with the merits of Brexit itself, and thus does not require the Court to consider those merits. I further accept that the challenge itself is a very interesting one, which does raise a genuine issue of real constitutional importance.

But let’s not pretend that that constitutional issue is what the lay clients are fundamentally interested in!

(18)(1)

Anonymous

This person gets it.

(4)(1)

Anonymous

No, he doesn’t, redneck.

(0)(4)

Anonymous

You lost, just accept it and move on. No hand outs anymore mate.

(1)(4)

Gregory Lauder Frost of the Traditional Britain Group

Anti-white racism noted.

(0)(4)

Anonymous

Does it matter what the claimant’s motives are? If the argument in the challenge is right, then it is always right. Though the courts have thrown out hypothetical or “constructed” cases in the past.

(1)(2)

Steve

As far as I can tell, the only issue that Parliament cannot prevent is the fact that we’re leaving the EU – how this process is managed & what sort of legal relationship we have in our brave new post-EU-membership world is entirely up to Parliament, so they should be involved in the process from the start.

I suspect that at this point people will point to various pronouncements made by the assorted leave campaign groups during the referendum to back up their position – but there were so many positions, with so many promises that cherry picking the pronouncements in favour of this type or that type of exit is nonsensical.
If you’re going to demand a hard Brexit because a campaign group promised it, then the other promises made (the £350m per week to the NHS, the continued regional funding, the continued R&D funding, the continued agricultural subsidies etc) also have similar legal force . Either they all get implemented – or we agree that the only thing we can agree on is that the UK voted to leave the EU.

That was the question – and we answered it.

(0)(0)

Anonymous

“Lord” Pannick – or just some dubious shyster attempting to assist some powerful interests to subvert democracy in the U.K.?

The argument was pants and the delivery was umming and ahhing.

More fool the judges if they fall for this pile of poop when the pitchforks are already out.

(0)(4)

Comments are closed.