The reaction to the Brexit legal challenge judgment has been crazy

Tension between lawyers and tabloids reaches fever pitch


The ever-increasing hostility between lawyers and the tabloid media reached unprecedented levels today in the fallout from the Miller decision.

Yesterday, the High Court gave its much-awaited judgment in the Brexit judicial review, ruling that the lawful invocation of Article 50 is conditional on a free vote in parliament.

Lawyers largely met the decision with open arms — there was certainly a buzz of excitement and pride in the Royal Courts of Justice at yesterday’s judgment hand-down.

This emotion quickly permeated the courtroom, with the likes of Durham Law School head Thom Brooks, Devereux ChambersJolyon Maugham QC and Cloisters’ Schona Jolly quick to give the High Court and its Article 50 judgment a solid thumbs up.

Though the government has confirmed it will be appealing the decision to the Supreme Court, this news didn’t quell the tabloids’ sense of resentment.

The Mail Online, whose readership is notably pro-Brexit, in its early coverage of the judicial review outcome seemingly sought to discredit the three judges who handed down the judgment.


This provocative headline, which has since been changed, caused absolute outrage among lawyers, who took particular issue with the newspaper mentioning Sir Terence Etherton’s sexuality.

Quick to share their dismay were One Essex Court’s Andrew Lomas and University of East Anglia law lecturer Paul Bernal.

Other lawyers unimpressed were Caoilfhionn Gallagher, a Doughty Street barrister, who said the headline was “ridiculous” and “offensive”; Philip Marshall QC went for “utterly outrageous” and “journalism at its absolute worst”; while criminal lawyer Nicholas Diable said it shows the newspaper “hasn’t moved much since its days in the fascist supporters club“.

On the Daily Mail’s front page today was a similar — but “openly gay ex-Olympic fencer”-less — headline describing the Lord Chief Justice and friends as the “enemies of the people”.


And, guess what, lawyers are really pissed off about it.

For one, Gerard McDermott QC pointed out a headline of this extremity could compromise the personal safety of Lord Thomas, Etherton and Lord Justice Sales. This is of particular concern given that the claimants who brought the legal challenge have reportedly suffered “abuse”.

Tracking other reactions, public law professor Mark Elliott said the headline was “deplorable”, Marshall thought it was “irresponsible” while Adam Wagner — human rights barrister and vocal legal tweeter — said he stood in “solidarity” with the judges, describing them as “the A50 Three”.

Also keen to have his voice heard was Joshua Rozenberg QC, who discussed the Brexit legal challenge and its implications with Legal Cheek at its case management stage. On his Facebook page this morning, the number one legal commentator — in a post titled ‘THE REAL ENEMIES OF THE PEOPLE’ — said:

It does these papers no credit that they are attacking the judges rather than their judgment. And it certainly does nothing for the government’s prospects of successful appeal.

Importantly, Rozenberg also said he does not believe the judgment will be overturned in the Supreme Court, so expect the tension between lawyers and newspapers to continue.



Fear not, Article 50 will be triggered regardless.

And a quick question for deluded Remoaners – would you like ketchup or gravy on your humble pie when you eat it?

Female lawyer

The judgment is not about whether or not we should stay or remain .

I voted remain but agree that it is important that the outcome of the referendum be given effect. However, the process by which it is given effect is important. I don’t think it would be a victory for anyone if by leaving the EU we also left behind the rule of law and our own constitution…

If the law is that Parliament must vote on this matter, imo MPs should agree to all vote for the law, regardless of their personal views.


Hear hear! I don’t know what is so difficult for people to comprehend about an independent judiciary making a decision on what is required to trigger art. 50 and not whether or not it should actually be triggered. It was a strictly legal question that was answered, the political question is for Parliament and the Executive. In fact this shows that our judiciary continues to be one of the finest in the world.

Also I’m tired of this suggestion that this is all a game and that if you voted remain you have no right to have a say on what happens next. The decision to vote leave has been made and should be respected. Now everyone is entitled to a debate on how we leave. It is not for a few members of the government to dictate what the leave vote actually meant.


I do not agree that the outcome of the referendum should be upheld for the simple reason that it wasn’t at all an exercise in democracy; rather it was an exercise in deceit, fomentation of hatred and ridicule of an international institution which, with all its numerous and well recited defects, has still done a wealth of good. If this is democracy then china, Russia and other dictatorships have plenty of reason to reject our system. We need to show true statesmanship, repeat the referendum, be honest with our people and finally prove that our system is truly the best.


I personally don’t have a problem with the High Court Judges. They only did their job.
This all comes down t oTheresa May. She should have triggered Article 50 the day she
entered Downing Street. Had she done so, this nonsense would have been avoided.


Seems to me that Katy is just as pissed off as the people she’s reporting on.

Scouser of Counsel (openly straight with a gay best friend)

Shock! Horror! One of the Judges is… OPENLY GAY!!!!

How dare he! What a scandal! Either he should get back in the closet right away or resign!!!!

What is the country coming to when judges are allowed to be OPENLY gay????

OPENLY gay people should not be allowed to judge European issues!!!!

*froths at the mouth*


Of course the result should be upheld. 17.4 million people voted for it.
You either believe in democracy or you don’t. I’m afraid you cannot ignore it just because you don’t agree with it.

Scouser of Counsel (openly straight with a gay best friend)

For the benefit of those without a sense of irony, before I get jumped on, the above was sarcastic scouse humour.

Has anyone told the Daily Fascist, sorry, Mail, that this isn’t the early-70s?

Sorin N. Stefan

I am a freelance and writer, having worked for quite a few years for the BBC World Service, Romanian Section, and I found this site searching for reactions at the absolute outrageous headlines in Daily Mail, “Enemies of the People”. Now, Daily Mail has proved itself many times a mixture of stupidity and political illiteracy, but this new low I think it’s already affecting the image of your country in the world. I just had a look at some French newspapers, which are calling this attitude – especially Daily Mail – “paranoia”. We used many times British press in our editorial work, mainly The Economist and FT – but also Independent and Guardian – both covering at that time quite extensively the situation in Eastern Europe, but NEVER British tabloids, although we kept an eye on them. In my country, so much in need of improving, to put it mildly, there was never, and it would be never allowed such a reaction in the press towards the Judiciary. My wife is from former Iugoslavia, and neither there such headlines wouldn’t be tolerated without some firm of legal action against the perpetrators. Great Britain has, from many points of view, an image of excellency in the world, a country where tradition is held in very high esteem, with strong and reliable institutions, the Judiciary being one of them. Seeing its image tarnished in this appalling way it won’t do any favors to your country in the world. I think that even from a third word country you would hardly expect the High Court to be called “Enemies of the People”. I sincerely hope somebody in UK will wake up to the magnitude of the offense. About the term itself, Daily Mail should do some readings in history, to understand the meaning of the expression. I used to work, at the beginning of 1990s for the main opposition party at that time, staunchly anti-communist, whose leaders, without exaggeration, have gathered between themselves hundreds of years in communist prisons. All of them have been sentenced by the so called Tribunals of the people, set up under the soviet occupation, straight after the war, under the accusation, ENEMIES OF THE PEOPLE. Everyone from Eastern Europe who reads this knows very well what I am talking about. Soljenitsin is probably turning in his grave. Please, as a person who sincerely admire Britain, a country whose contribution to science and culture is second to none – and my appeal is to common sense, responsible journalists, who take pride in their country – do try to put a stop to this totally unacceptable behavior of Daily Mail, who is just one step ahead of irreparably damaging the image in the world of a very old and respectable British institution. All the best and thank you for your time!


Yes, but we also have a long tradition of a free press in which criticism of our politicians and judges, even in strong terms, is allowed. The fact that this would merit sanction in your country shows that this is a freer society than yours.


You dont see the irony in your comments, do you?

You are saying that we should repress our freedom of the press because they are criticising our institutions. That is what your country used to do!

You profess to admire our society but obviously do not understand it! Offending our institutions here does not merit punishment. It’s called FREEDOM and DEMOCRACY. Something we have a lot of experience with in the UK 🇬🇧


Freedom of the press in a democratic state does not mean that one should tolerate or permit open contempt for the judicial arm of the state. Do you know anything about the principles of separation of the powers, which underpin democratic government? The executive arm of state must respect the other two arms, parliament and judicial. So less of you patronising comments and more knowledge please of the subject under discussion.


Judges are merely civil servants like any other civil servant.


S. N. Stefan you are absolutely right. The Mail has shown itself up to be a fascist mouthpiece for extremists. In my opinion the editor of this rag should be pursued by the authorities for seditious incitement, in effect this nasty rag is promoting hostility towards eminent members of the British judiciary who were simply doing their duty and delivering their ruling to uphold fundamental principles of the constitution and the rule of law. John, Ireland

Scouser of Counsel

I’m sorry folks, but this is England where dissent is allowed and is not punished by the state. Long may it remain that way.

Much as I detest the Daily Mail, the thought of censoring them for disagreeing with the High Court fills me with just as much horror as their homophobic rantings.


Yes it is England, and people wonder why the Uk is not working – these Lawyers were only clarifying the law – attack there judgement by all means but not them personally.

Frustrated by sound-bite attention seekers

they can disagree with the judgement, no problem with that; but they cannot, in the terms they did, attack the judges for giving their judgement. That is what judges do. They have no choice. The implications of bias, enmity of the people, etc, are outside their remit and off-limits. They are also unfair and, in the current febrile atmosphere with nutters around killing MPs, potentially downright dangerous.

Old Fence

What is the relevance of him being an ex-Olympic fencer?

I thought fencing was decriminalised in 1967?

I’ve spent most of my adult life in the closet thinking fencing was a sick and twisted deviancy. I was even subject to aversion therapy for fencing in a secret underground gym in 1964.

Children should be taught that fencers are people too, and that it shouldn’t matter if consenting adults fence in private.

I’m just looking forward to the day when fencers can marry other fencers.

Shame on the DM for being so anti-fencist.

Facetious pedant

>I thought fencing was decriminalised in 1967?
Last time I checked, handling stolen goods was still a crime.

Female lawyer

Openly gay used as an insult is obviously completely disgusting. I can’t help but be amused by the pejorative use of the description “ex-Olympic fencer” though.


How dare he (once?) have been an accomplished athlete who presumed to be good enough to represent his country AND then boycott the Olympics for military aggression. Outrageous!


“Caoilfhionn Gallagher, a Doughty Street barrister” – how the bloody hell do you pronounce her forename?!

Simka Dablitz.

Why is everyone so emotional about leaving or remaining. And what’s wrong with taking it up the ass?

Cecil the Poof

It hurts!

Never was the phrase “it is better to give than to receive” more true.


I’ve yet to meet anyone who actually enjoys being on the receiving end…


For the fool looking forward to “Remoaners eating humble pie” – do you have anything to do with, or any understanding of UK Law? Seriously?! That you have clearly failed to understand the basic question of law before these High Court judges suggests not. Back in your box 🙄


The reaction to this judgment and the inability of those criticising the judges demonstrates the danger of leaving important decisions such as whether to remain in the EU or leave to the thickos.

What happened yesterday was that British judges ruled on how domestic law should be administered, which is what Brexiters want.

Wake up thickos.

Simka Dablitz.

Chaoilfhionn means ‘cool fence’ which is a way pervy way of doing fudge fencing with ice cubes.
Summer can you splaine me the Basic law Q’s before or behind the judges, but keep it simples please?


From the Daily Telegraph:
The High Court has misjudged the law on Article 50. The Supreme Court must fix their mistake

What went wrong in the High Court?
The Government should have won the Miller case. Yesterday’s High Court judgment was badly mistaken and, if the Government argues its appeal properly, the Supreme Court should overturn it.
The question for the High Court was not whether Brexit should go ahead. Rather, the question was whether the Government had legal authority to decide that the UK should withdraw from the EU and to notify the EU to this effect.
Very many constitutional law experts argued that the Government clearly had this authority as a matter of the established royal prerogative to conduct foreign affairs – which includes power to exercise a right like Article 50.
The High Court has said that this prerogative power has been overridden by the European Communities Act 1972 (ECA 1972) and that before the Government can trigger Article 50 there must be a new Act of Parliament expressly authorising this executive action. But the High Court got its constitutional law wrong.
There is no question of the European Referendum Act 2015 providing legal authority for the Government to trigger Article 50. Parliament took for granted, in setting up the referendum, that the Government had the necessary authority under the prerogative to conduct foreign affairs.
So why did the High Court rule otherwise? The Court was insufficiently careful in distinguishing the relationship between domestic law, which is enacted by Parliament and which the executive cannot change by fiat, from international law (including European law) in which the executive represents and acts for the UK.
The Court wrongly took the UK to have entered the European Economic Community by way of the ECA 1972, implying withdrawal also required an Act of Parliament. But the UK’s entry into the European treaties was by way of executive action alone. Remaining an EU member in good standing has required the ECA 1972, but it doesn’t follow that this Act limits withdrawal.
Likewise, the Court wrongly takes the triggering of Article 50 to constitute the Government’s destruction of rights that people enjoy in British law because of EU membership. This is asserted to be tantamount to the executive changing the law by fiat, which has been forbidden for centuries.
But the rights that UK citizens enjoy in EU law, such as free movement across the EU, are a function of the UK’s membership of the treaties, which the ECA 1972 presupposes but doesn’t immunise from change as a matter of international law. And the rights that persons enjoy in UK law as a result of EU membership are treaty-based rights not statutory rights truly enacted by Parliament.
This distinction is important. Parliament has made the content of our law turn partly on whatever European law is from time to time. In triggering Article 50 the Government is not changing domestic law by fiat. It is changing the UK’s obligations at international law in a way that has implications for our domestic law because this is what Parliament has provided should happen. Live by the treaty, die by the treaty.
The High Court muddled this analysis partly because the Government put its case very poorly, making a hash of the precise way in which our domestic law makes provision for European law to come into effect. The Government also muddled a powerful analogy with the termination of rights under double-taxation agreements, where the Government is free to cancel the agreement in a way that changes domestic tax law.
This is not some high-handed executive defiance of Parliament. It is the way that Parliament itself has chosen to regulate the relationship between international law and domestic law.
The detail of this relationship, which is at the heart of the case, is traced with painstaking care in two recent Judicial Power Project papers by Professor John Finnis, one of the Commonwealth’s leading constitutional law scholars. The Government should adopt his analysis before the Supreme Court.
The High Court judgment is seemingly robed in the majesty of the English and British constitutional tradition of progressive subjection of the Crown to the rule of law and parliamentary control. But in fact the judgment wrongly departs from established constitutional law and principle.
Requiring a new Act of Parliament before Article 50 may be triggered is not a victory for parliamentary sovereignty, as some wrongly assert. Parliament has always been entitled to change the law if it so chooses and it can, moreover, unseat the Government if it wishes.
Indeed, strictly, the High Court judgment is entirely unnecessary to ensure parliamentary control of the Government: it is open to the House of Commons at any time to unseat the Government if it has no confidence in its Brexit plans. But the judgment does, in the short-term at least, help empower parliamentarians who would like to thwart the referendum result.
There is no reason to think the High Court’s judgment is other than an honest mistake. But it is an important mistake, not only in its handling of legal materials but in its misunderstanding of fundamental constitutional principle. The Supreme Court must set it right.
Professor Richard Ekins is an Associate Professor, University of Oxford and Head of Policy Exchange’s Judicial Power Project

If the professor is right there is every chance of the Supreme Court overturning the ruling.


Your copy & paste skills are truly exceptional. Well done on not having any independent thoughts of your own whatsoever.


The post never purported to be anything else.

It follows, your comment is without value or purpose.


I posted the comment in full because it is behind the Telegraph’s new firewall and inaccessible to those who don’t have an account. I also posted it for comment, I did not say whether or not I agreed with it. As it happens I do. In my opinion the High Court has not only misinterpreted the law but has also failed to apply the law of estoppel, and to uphold the principle of stare decisis in regard to prior case law and the rules concerning abuse of process.
Gina Miller et al should have been non-suited and told to pay costs for wasting the court’s time.
There, I have been polite now why don’t you try remembering where you left your good manners?


Paywall not firewall. Unless you hacked into their servers to get this article.


For such an apparently eminent commentator – he has the whole thing very wrong!

The point was that if Article 50 is indeed irreversible, an action at the international level using RP powers to give notification would inevitably mean that rights put on a statutory basis by parliament would inevitably be repealed, including fundamental EU citizenship rights (for example). The Royal Prerogative cannot exist where its exercise would override the will of parliament, therefore the government has no authority to give notification under Art 50 using the RP.

It is also not the case that parliament “took it for granted” that it would give the executive the power to invoke Art 50. The AV referendum was drafted expressly so as to bind the government to the result. They could have done the same with the EU referendum – they didn’t.


No, but the Government did say on the floor of the House of Commons and in writing – the pamphlet sent to every household – that whatever the outcome of the Referendum was the Government would respect it. There were no objections in Parliament, in either House, at the time.


(a) That was a different government.

(b) Much, much more importantly, Cicerbro is saying is that *Parliament* decided not to make the referendum binding / include in the Act an authority to trigger Art 50, and it chose not to. What you’re saying is that the *Government* said it would do something. FTAOD, those two things – Parliament and Government – are not the same (that is the entire basis of the separation of powers) even in a fused-powers system like ours.

The point is that *Parliament* has yet to approve the triggering of Art 50, and that is something (according to the HC and as per Cocerbro’s comment above) that only Parliament can do. Whether or not they objected to statements made in debate / in pamphlets, Parliament has yet to actively grant a power to the Government to trigger Art 50 and therefore, until it does, no such power resides in the Government. End of.


Why would there have been objections in Parliament? The Commons briefing note – the one that explained to MPs what they were voting on – devotes several pages to emphasising the entirely advisory nature of the referendum.


Richard Ekins is wrong to say “… the rights that persons enjoy in UK law as a result of EU membership are treaty-based rights not statutory rights truly enacted by Parliament.”

Para 69 of the judgment states: “The European Parliamentary Elections Act 2002 … makes provision in relation to elections to the European Parliament. Section 1 provides that there shall be 73 members of the European Parliament elected for the United Kingdom in respect of 12 electoral regions. Section 8 states who is entitled to vote in European parliamentary elections. It is common ground that these provisions will lose their effect if the United Kingdom withdraws from the European Union.”

If Article 50 removes my rights under The European Parliamentary Elections Act 2002 (which it does, and which the Government conceded, see para 63), then it follows that Article 50 cannot be triggered without an authorising Act of Parliament.

Nigel Fa-doesn't matter

Fiat?! That’s an Italian word. How dare our sacred British courts and our supremely sovereign Parliament give effect to an Italian. Take back control! Shame, shame, shame!


Thanks for this. It is reassuring that there are still some people capable of proper legal reasoning on this.


Has anyone else been reading the news over the last 24 hours and thought “I wish TO GOD that court reporters/anyone writing on legal issues in a newspaper would just learn how to spell ‘judgment’ already”????


When I saw this comment I was like, oh my god, shut UP! Those reporters are like so totally wrong, but whatever, right!


Orwell said when your writing gets sloppy, your thoughts get sloppy. If journalists want to accurately report on legal news, them getting the spelling of ‘judgment’ right is not a great ask.

Not Amused 2

‘to accurately report’ – you clearly have very sloppy thoughts.

(And before you argue otherwise, split infinitives are a sign of poor writing)


This has been comprehensively disproved. To mindlessly repeat the fictions of others is evidence of a stupidity of character, surely.

Not Amused 2

It hasn’t been ‘disproved’ – some people just argue otherwise. Either way, split infinitives generally sound awful.

And your above comment – ‘stupidity of character…’ – is writing at its most pretentious.


Because you, Lily Savage, have the same vote as the rest of us!


There seems to be a lot of hyperbole around at the moment; the High Court judgment does not necessarily frustrate the invocation of Article 50.

I am sure that this country will cease to be a member of the European Union sooner or later.

What this judgment does however do is provide the leverage necessary for those in Parliament who want to remain inside the Single Market.

They want the country to remain in the Single Market because it is the single most defining aspect of membership of the European Union. It results in the preservation of the four freedoms: freedom of movement, goods, capital and people.

If we remain in the Single Market, we will remain in the customs union. Therefore trade policy will remain in the hands of the European Commission. Legislation will continue to be made ad nauseam in the European Parliament and be controlled by the Commission.
If we remain in the Single Market, you might as well not even bother to Leave the European Union.

The Article 50 debate will turn into a farce. When the government makes clear that it intends to leave the Single Market substantively (they may try to negotiate into certain sectors like Financial Services and Automotive), the Remain campaigning MPs will vote against invoking of Article 50 under the entirely arguable contention that leaving the Single Market will lead to ‘economic disaster’.

We heard voting to Leave the EU would lead to a ‘profound economic shock’. It didn’t happen.

The idea that product standardization and market harmonization regulation by itself is the essential ingredient in continuing economic prosperity is absolutely farcical.
The US exports more to the EU outside the Single Market than we do inside the Single Market.

Be ready for a January/February 2017 General Election because the Supreme Court isn’t going to help the Government on this one.


“We heard voting to Leave the EU would lead to a ‘profound economic shock’. It didn’t happen.”

I think that you’ll find that the exact wording by George Osborne was that

“If we take as a central assumption that the UK would seek a negotiated bilateral agreement, like Canada has, the costs to Britain are clear. Based on the Treasury’s estimates, our GDP would be 6.2% lower, families would be £4,300 worse off and our tax receipts would face an annual £36 billion black hole.”

Note that he said “The UK would seek a negotiated bilateral agreement [With the EU]”. The implication of that comment is that AFTER we have negotiated a bilateral agreement we would have a GDP that is 6.2% lower than now.

He didn’t say that the economy would collapse the moment the results of the referendum became known.

Anonymous – listen to this, then come back with the same fatuous nonsense.

He also did not say GDP would be lower than it is now by 6.2%. He said that there would be a loss of economic output from expectant gains between now and 2030 of 3.6%. We would not therefore become poorer, just less rich than might otherwise have been the case had we not voted to leave.

All of this is conjecture anyway since the vote to Leave the EU is an unprecedented event the effects of which cannot be predicted by an existing econometric model by virtue of the fact that the vote to leave represents an inflection point.

So indeed he did say that the vote to leave the EU would be a profound and immediate shock and would lead to a recession.

Try again with your factually inaccurate nonsense.


All of this is academic; the result will be the same. It will be another ‘interesting’ chapter in a textbook.

Simka Dablitz

No one here is able to splaine me da Basic Law Q’s b4 da court. So me asks The Lord Chief Justice Lord Thomas and him say: “The sole question in this case is whether, as a matter of the constitutional law of the United Kingdom, the Crown – acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union.”

So dat means you all thickos who haven’t read da judgement ya? And ya’ll more interested in tweeter tattle and school boy sex innuendo and what da gutter press has to say.
Since when did we have plebian sovereignty?

Simka Dablitz

Do ya’ll consider yoselves to be emotional persons or do you rarely get emotional?


This campaign is NOT about Brexit. Those who sign up may variously support Brexit, or Remain, or hard or soft Brexit. And this campaign is NOT designed to stifle press debate of judicial decisions.

But it is about preserving something essential to Britain’s future – the rule of law.

What unites us is that we strongly oppose the use of inflammatory or intimidating language directed at the judiciary by the press. We believe there is an existing law that makes this illegal. And we would like that law enforced.


Regardless of any law…we had a vote and we saw the results…just ask yourself how much money this legal challenge is costing the country…?..and the waste of oxygen that is spearheading the case crowd funded the cost of proceedings even though she is filthy rich…


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