Legal Cheek

The story of the Brexit legal challenge, by somebody who went to every hearing

Gina Miller’s case was the biggest in recent history. I was one of the few journalists there from beginning to end

I’ve been in court at every stage of the Brexit legal challenge, from the case management hearing at the Royal Courts of Justice in July 2016 to the Supreme Court’s judgment hand down this week. History was made with the Miller judgment, and I’m glad I got to experience it.

The importance of the case has always weighed heavy on the court’s shoulders. Things got serious really quickly: anti-EU protesters picketed claimant Gina Miller’s solicitors firm, Mishcon de Reya, in early July. The case hadn’t even reached the courtroom by this point, nor had Miller been named as the lead claimant.

Image via @david2206

Judge Sir Brian Leveson used the case’s first spell on the courtroom floor as an opportunity to condemn this abuse, but it persisted. A 55-year-old man was later arrested for sending her racist threats online, with judges at every stage — Leveson, Lord Thomas and Lord Neuberger — forced to remind their audiences that abuse like this will not be tolerated by the justice system.

Consistent and widespread, the abuse highlighted how highly-charged and emotive the Brexit legal challenge was. Though very pantomime-esque, the wig and gown-donning protesters outside the High Court on day one of the first instance hearing, 13 October, brought this mood to life.

Inside the courtroom, things were a little more humdrum, yet the first hearing still managed to feel like a legal profession red carpet event. Lord Pannick QC, Lord Thomas, Sir Terence Etherton, Jeremy Wright QC — if you hung around in the corridor long enough you were bound to bump into someone. Even University Challenge legend Ted Loveday was watching from the wings!

With big events comes big interest, and rafts of people flocked to the RCJ to watch the show. At the preliminary case management hearing, the whole courtroom was bulging at the seams. It was vacated and everyone shifted over to Court 4 just minutes before the judges took their seats. At the hearing itself, the High Court was more prepared, so set up cinema-style screening rooms (‘overflow courts’) to help meet the demand.

Unfortunately, the camera angles left a lot to be desired and the audio was scratchy. The courtroom was the place to be, certainly when the High Court’s much-anticipated judgment was handed down.

The fear in the courtroom was palpable: it’s worth remembering that up until days before, almost no one believed Miller and co had a chance of success. Legal affairs journalist Joshua Rozenberg, Oxford EU law academic Paul Craig and others went on record to this effect. And then this happened:

The mood in court that day was certainly upbeat, probably because there were so many claimants in attendance. I had the awkward experience of bumping into Charlie Mullins, millionaire plumber and Miller claim backer, outside the RCJ toilets and not realising who he was until the BBC’s Laura Kuenssberg jumped on him as he left the building. Miller herself was there at every stage too. Often flanked by bodyguards and/or her legal team, she looked nothing but steely and focused.

Mullins and Miller were of course thrilled with the result, but in and among the joy there was a lot of disappointment and the occasional unjustified scathe. The right-wing press’s reaction to the judgment hand down shocked even the most seasoned lawyer.

With the profession busy rounding on the right-wing media and later Justice Secretary Liz Truss for failing to defend the judiciary from the right-wing media, the government filed its leapfrog appeal with little fuss.

But by the time the case reached the Supreme Court, the press had been churning out accusations of judicial bias for weeks. Tensions were at fever pitch when all eleven justices convened to hear the case on 5 December.

These accusations clearly had an impact: Neuberger admitted the judges had taken the very unusual step of asking the parties whether they wanted any justices to recuse. Watching from the media suite on that day, journalists couldn’t believe what they’d just seen. I felt a similar way when I found out how expensive a Supreme Court meal deal is.

You heard it here first: a meal deal from the Supreme Court is £7

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A bigger bugbear for me was the lack of meaningful protest outside the court. There were a few eccentrics — a man Irish dancing with no trousers on, for example — but as for an organised, group effort, zilch. I got the impression the court was expecting some: the security/police presence was intense (I felt very nervous to pap my meal deal pic), but perhaps not necessary.

Ultimately — regardless of the media interest, the case’s importance and Pannick’s dreamy advocacy — a four-day hearing about the constitutional law intricacies of prerogative powers can only be so interesting. Journalists and other courtroom-goers looked noticeably pained when Dominic Chambers QC began his submissions on the history of the royal prerogative, while James Eadie QC, for the appellant government, also induced some yawns.

That’s why we were grateful for the occasional lighter moments. The now famous tomato/tomato, De Keyser/De Keyser exchange provided some light relief, as did Lord Sumption’s colourful tie collection. Wearing a Team GB tie on day three of the hearing, then ruling in Miller’s favour? Sumption is officially the biggest tease on the Supreme Court bench.

Otherwise, the ruling went mostly as people expected. The court dismissed the government’s appeal eight to three, which means MPs will now vote on whether to trigger Article 50. Will parliament decide to block Brexit? Weirder things have happened.