The Supreme Court show must go on
Eleven of the country’s top judges took their seats in the Supreme Court this morning to hear day three of the most important constitutional law case of a generation.
The atmosphere was notably more subdued than day one of the hearing. The police presence both inside and outside the court was strong, but the scores of protesters have dissipated and courtroom one — the venue of the Brexit judicial review hearing — was considerably less busy.
Number of protesters outside the Supreme Court this morning: 0 pic.twitter.com/CEhml8pfoG
— Legal Cheek (@legalcheek) December 7, 2016
Though the ambience was different, the fierce constitutional law arguments remained the same, with Blackstone Chambers‘ Lord Pannick QC first to give oral submissions before the bench.
Kicking off the hearing at 10.30am, the lead claimant’s barrister began by arguing the European Communities Act 1972 shows it’s “most unlikely” the legislature intended that the United Kingdom’s relationship with the European Union could be “undone” by a minister. The act:
[I]s simply inconsistent with any prerogative powers to set it aside.
Later, Pannick used the law of frustration — a word that will strike fear into the heart of contract law students — to argue that:
The statute book has so many provisions… that proceed on the assumption that this country is a member of the EU that the Secretary of State cannot by prerogative power take the step of notifying… without parliament addressing this issue.
Ministers cannot proceed along the path of notification without parliament firstly addressing the frustration/nullification problem, which will inevitably arise when Article 50 is triggered.
Half way through Pannick’s submissions, news broke that a 55-year-old man had been arrested for threatening Gina Miller, the lead claimant in the case.
Murmurs in the courtroom as news breaks that a man has been arrested for threatening lead claimant Gina Miller
— Legal Cheek (@legalcheek) December 7, 2016
The fund manager has reportedly been subjected to death and rape threats, as well as racially aggravated abuse, because of her involvement in the judicial review. Throughout both the High Court and the Supreme Court hearings, judges — namely Lords Thomas and Neuberger — were at pains to condemn this online abuse, the latter telling the court on Monday morning:
Anyone who communicates such threats or abuse should be aware that there are legal powers designed to ensure that access to the courts is available to everyone.
There were murmurs in court as news of the arrest came in — a reminder of the case’s legal and political importance. But the hearing went on uninterrupted and, in and among the jargon-fuelled insipidity, there were some funny, more human moments.
Half an hour into Pannick’s submissions, for example, Lady Hale reacted with horror when the Blackstones barrister said he was going to discuss De Keyser (a case explored at length by James Eadie QC during the government’s submissions). “Have I been pronouncing that case wrong all my life?” asked the sole female justice, before president Neuberger jumped in to reassure the laughing courtroom the judicial transcript won’t reveal if anyone was saying the case name incorrectly.
Pannick tells court he will now discuss the case of De Keyser, Hale asks in horror "have I been pronouncing that case wrong all my life?"
— Legal Cheek (@legalcheek) December 7, 2016
Pannick rounded off the first respondent’s case with a compelling message to the judges. The media attention attached to the case, the volume of case materials and lawyers, and the eloquence of the respondent should not blur what is, in fact, a simple constitutional principle: the Royal prerogative cannot remove statutory rights.
Next up was Dominic Chambers QC, acting for second respondent Dos Santos. The Maitland Chambers barrister took the court through the historical basis for and context of parliamentary sovereignty, starting with the 17th century Glorious Revolution.
He went on to tell the court this history demonstrates the interaction of parliamentary sovereignty and the UK’s dualism. Rights granted by these treaties are without doubt statutory, domestic rights — to suggest otherwise is “fallacy”. This history shows such rights can only be removed from domestic law by — you’ve guessed it — parliament, regardless of what government may say.
The Supreme Court case continues this afternoon and tomorrow, with the hearing scheduled to finish with the appellant’s replies on Thursday afternoon.