And why things might go the other way…
Legal affairs geeks are counting down the days until the Supreme Court gives its much-awaited Brexit ruling, and the bookies are already pretty sure it’ll be a win for the respondents (the claimants).
According to Betfair.com, the odds are 1.23 (or 2/9) that the High Court’s ruling will be upheld and that the government will lose its appeal. That said, “MPs are 1.15 (2/13) to vote for Article 50 to be triggered”, making it likely the Supreme Court’s judgment will not ‘block Brexit’ as many tabloids are making out.
This seems to loosely correlate with the views of the experts. Joshua Rozenberg QC for one has described the High Court judgment as “appeal-proof”. Writing for Legal Cheek on the Miller saga — specifically about the difference between the claimant’s and the government’s arguments — he said:
Pannick’s arguments strike me as much more grounded in the real world. So too are the arguments put by Dominic Chambers QC for the second respondent, Deir Dos Santos.
Other eagle-eyed commentators, like Cloisters lawyer Schona Jolly, have shared similar sentiments.
I have now read the #Art50 judgment in full. It is a comprehensive victory for the claimants. I cannot see the Supreme Court undoing this.
— Schona Jolly (@WomaninHavana) November 3, 2016
Of course if one has learnt anything from 2016, it’s that betting odds should not be taken as gospel. Even in the context of this case, at the early stages the country was sure Miller and the other claimants didn’t stand a chance. Even Oxford professor Paul Craig — who student readers may recognise as one half of EU law bible authors Craig and de Búrca — told Legal Cheek:
The legal arguments here are very complex and contestable. My own view is parliament definitely has the power to demand a parliamentary vote before Article 50 is triggered. The issue is that parliament doesn’t show any inclination to do this at the moment. So the question is this: is there a duty enforceable through the courts for parliament to debate and vote before Article 50 is triggered? On this point, my view is no, but that’s what the courts will have to decide.
It was only in the days, even the hours, before the Lord Chief Justice sat down in the Royal Courts of Justice to give his judgment that opinion began to shift slightly the other way. People started to wonder whether the claimants actually had a chance. And then, of course, this happened:
BREAKING: the CLAIMANTS have WON the Brexit judicial review challenge
— Legal Cheek (@legalcheek) November 3, 2016
In the context of the Supreme Court’s ruling, these anti-popular opinion murmurs have already started, asking ‘is it really inevitable Jeremy Wright QC and friends’ appeal will be dismissed?’ Some believe Lord Pannick QC, acting for the lead claimant, came under a surprisingly intense shower of fire from Lord Neuberger and the other justices, which may imply the bench took issue with some of his arguments.
Lord Pannick getting a grilling from Lord Neuberger on binding force of 2015 act, members of court nodding along as Pannick gives response
— Legal Cheek (@legalcheek) December 7, 2016
Others have pointed out that, while the judiciary is a politically neutral body, it does not operate in a bubble. The wider implications of this decision will be weighing heavy on the justices’ shoulders — will this influence their decision? Rozenberg is quick to say it will not, but we’ll have to wait until the new year to learn the government’s fate.