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Supreme Court rules Theresa May CANNOT trigger Article 50 without parliamentary approval

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Most important constitutional law case of a generation concludes with an unexpected split decision

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The Supreme Court has ruled that Article 50 cannot be triggered by prerogative power alone, meaning parliament must vote on whether to begin our withdrawal from the European Union.

Clearly swayed by lead claimant Gina Miller — and her counsel Lord Pannick QC’s enviable advocacy skills — the highest court in the land decided this morning that it would be unlawful to deny MPs a free vote.

Legal Cheek has been informed that government lawyers were given a copy of the judgment at 8am on the Supreme Court’s premises. At 9.15am, the Prime Minister and Miller were told about the decision by their counsel.

It was just 15 minutes after this — and feet away from some pretty bizarre outside court shenanigans — that Lord Neuberger shared the decision with the rest of the world.

Reading out a summary of the judgment to a packed Courtroom 1, the president of the court reminded spectators that this judicial review had “nothing to do” with whether the United Kingdom should exit the EU.

The main issue at hand was whether the government can trigger Article 50 without parliamentary approval; the answer to this is no. The reason is that withdrawal from the EU means a withdrawal from EU treaties, which will alter UK citizens’ rights. Any change to citizens’ rights must be made in the only way permitted by the constitution, and that’s by an act of parliament. The court duly dismissed the government’s appeal.

Lead1

However, it was a split decision: Lord Reed, Lord Carnwath and Lord Hughes dissented. The trio said that the effect of EU law under domestic legislation is inherently conditional on the application of EU treaties and our membership. Interestingly Lord Sumption, who is generally believed to be most ‘most Brexit-y’ of all the justices, went with the majority.

How the judges ruled:

Table

On the devolution issues, there was not such a split. The court unanimously concluded that relations between the UK and the EU are reserved for the UK government/parliament and not for the devolved nations.

Though Brexiteers may be bummed out by the decision, they should take comfort in the following extract from the judgment:

What form [the required legislation] should take is entirely a matter for parliament. But, in the light of a point made in oral argument, it is right to add that the fact that parliament may decide to content itself with a very brief statute is nothing to the point. There is no equivalence between the constitutional importance of a statute, or any other document, and its length or complexity.

Speaking outside the iconic Westminster building this morning, Miller took the opportunity to thank her legal team at Mishcon de Reya and her Blackstone Chambers barrister Pannick “for conducting themselves with such integrity and thoughtfulness in the face of extraordinary and unwarranted criticism”. She “wholeheartedly” thanked those who had supported her throughout the challenge, continuing:

They have truly helped to bolster me in this most arduous process.

Indeed, whether you agree or disagree with the ruling, what’s undeniable is that it has been a real rollercoaster ride getting here.

The whole case has been mired in controversy from day one, with anti-EU protesters setting the tone early on by picketing law firm Mishcon de Reya.

After the first instance judgment was laid down by the High Court, right-wing media lost the plot when it went Miller’s way. The judges were described as “enemies of the people”, prompting fierce condemnation from the profession, but barely a murmur from appointed judiciary-defender Lord Chancellor Liz Truss.

The controversy picked up pace when the government launched its appeal.

There was that row about bias on the judges’ bench, after Lord Neuberger’s wife made some pro-EU tweets and Lady Hale made some controversial comments in Kuala Lumpur (the ones that really pissed off Iain Duncan Smith MP).

Miller herself has been dragged into the furore herself: bombarded with death and rape threats, a man was even arrested for sending her online racist abuse while the Supreme Court hearing was going ahead.

Against this, frankly mental, backdrop, there have been some lighter moments.

There was fascination with Lord Sumption’s ties and Lady Hale’s brooches. Barrister Rupert Myer’s spoof Twitter case commentary had us in stitches. There was the University of East Anglia professor who counted every word spoken by the Supreme Court to try to guess the outcome. Two of the case’s barristers were embroiled in a sweary Twitter spat, while the world became so comforted by Pannick’s soothing voice a new clothing line with the barrister’s face on it hit the market.

As for next steps, parliament is expected to vote on triggering Article 50 ASAP to keep as closely to May’s ‘I will start the withdrawal process by March’ promise. Though parliament is expected to vote in line with the referendum result, if the past few months have taught us anything it’s to expect the unexpected.

Read the judgment in full below:

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64 Comments

Anonymous

In reality this will probably change very little by way of the direction of Brexit.

(10)(3)

Anonymous

Shut up you sexist pig.

(6)(2)

Molly

As I am the first person to comment here, just want to highlight two things in the hope of setting the tone:

1). Be nice

2). Whether you wanted to remain or leave – you did so with what you perceived to be the best interest of the UK at the heart of it – it is now time to come together, whatever the new direction may be for the future of the UK.

(9)(24)

Officious bystander

> As I am the first person to comment here, just want to highlight two things in the hope of setting the tone:

Err, second person actually – Anon beat you to it. Both good points however – not that the boys & girls will pay much attention is suspect.

(8)(0)

Anonymous

Not first. Fail.
Overly optimistic about tone of LC comments. Fail.

(3)(0)

Anonymous

This is the worst comment ever to appear on legal cheek

(24)(2)

Opinionated but ignorant

The fact you started typing your post before 11.03, when in fact the first post was made, and your finished your post at 11.07, you spent at least 4 minutes writing that drivel.

It’s not time for us to come together. Anyone who voted for brexit or who didn’t vote for Hillary Clinton is a RACIST

(7)(16)

Anonymous

A racist sexist!

(1)(0)

Anonymous

A racist, sexist, disablist homophobe, no less!!!

(1)(1)

Anonymous

Part of a WHITELASH. A Whitelash I tell thee!

(0)(0)

Charlotte Proudcock

It’s all about ME …

(6)(0)

Not Amused

So I was roughly right on numbers, but of my 3 guesses for who would dissent I only got Carnworth. Reed and Hughes are clearly dark horses who I have underestimated.

Hale, Kerr, Clarke, Wilson and Hodge were always going to vote as they did.

I think it is a great shame that this increase in public law is politicising the way that I view the SC. I don’t like it. I don’t want a US or German system where unelected judges become the ultimate constitutional authority. I think taking the final appellate court out of Parliament was a mistake (and let’s face it, the carpet is hideous). It’s not very British and it makes me uncomfortable. How long before the press start analysing SC appointments for political leanings? How long before the press start to realise you can guess the outcome of these public law cases based upon what you know of the judges?

I feel this was a backward step. I feel the veneer of our judiciary cracking and I am much perturbed.

(8)(25)

Farts

BREXIT MEANS BREXIT!

(2)(2)

MM

Most people didn’t guess the outcome of this case on the political leaning of the judges but on a basic understanding of constitutional law. If the government case had been right, then the PM could take us out of Europe even if there had been no referendum or if the result had been to vote remain. It was non-sense from the start.

Theresa has a track record (on immigration appeals) from her time at the home office of keeping litigation going because ‘she is not ready to put down her weapons’ despite the result being a foregone conclusion. This is no different.

(17)(1)

Officious bystander

“Nonsense” is one word.

(1)(1)

MM

Not if you are using a hyphen for dramatic effect.

Thanks tho.

Innit.

(2)(0)

Anonymous

So is dram-atic if you want to be really creative.

(2)(0)

SingaporeSwing

^ load of rubbish, frankly

It resolves a lot of questions in a sensible way.

(0)(0)

Interloper

Your ramblings get more bizarre by the day.

All kinds of wrong… 😐

(0)(0)

Pantman

This is a fake Not Amused, isn’t it!?

(0)(0)

TheAcresOfFour

I predicted Lord Reed and Lord Carnwath would side with the Government, in a comment on Michael Walker’s journal post; https://www.legalcheek.com/lc-journal-posts/article-50-challenge-an-autopsy-of-the-supreme-court-livestream/#comment-target – Dec 14, 10:57 pm.

The outcome isn’t at all a surprise, and nothing much has changed about Article 50 being invoked. It will still happen by March 31st.

Move on…

(1)(0)

Trumpenkrieg

[insert random anti-Semitic comment here]

I’m as bored of this as you all are.

(4)(1)

Anonymous

You lacist!

(1)(2)

Anonymous

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

(1)(2)

Anonymous

Please ban this guy.

(1)(0)

realTrumpenkrieg

for what? For noticing?

(0)(3)

realPutinenkreig

Shh now, don’t let everyone know you are my puppet.

(0)(0)

realPutinenkreig

Good dog. Daddy is pleased he rigged the election for you. Want a tummy rub?

(2)(1)

Anonymous

Has anyone managed to interview Alan Blacker on this?

(8)(0)

Lord Blacker

As a peer of the realm, I am the law. Look on JAFLAS, ye mighty, and despair.

(14)(0)

Anonymous

Arguably the more significant point to comment upon, at least from a practical perspective, is that the devolved parliaments do not have veto-rights on “Brexit”…

(7)(0)

Anonymous

Gina Miller comes across as pretty smug and full of herself. I voted remain, but I can understand why many people feel that wanting to remain in the EU is elitist and sanctimonious, considering that most ‘public’ pro-EU figures are just that.

(7)(10)

Officious bystander

Rees-Mogg?
Duncan-Smith?
Johnson?

(14)(0)

Pantman

Right on! The ‘common people’ got tricked into following a wagon load of toffs. And not very bright ones at that.

(4)(0)

Anonymous

the common people, isn’t that a song?

(1)(0)

Anonymous

She came from Greece she had a thirst for knowledge
She studied sculpture at Saint Martin’s College
That’s where I
Caught her eye…

(5)(0)

Anonymous

“I BASE MY POLITICAL LEANINGS ON WHO I WOULD MOST LIKE TO HAVE A PINT WITH”

No wonder you lot vote for the stupidest shit imaginable.

(1)(0)

Ciaran Goggins

Constitution? There is none. An unwritten one, it will get you as far as an unprinted twenty quid note. Brexit? You mean when a vote to leave was passed by the majority yet we can’t have it. Define democracy?

(2)(15)

Anonymous

Parliamentary sovereignty has always been part of the British constitution. There was even a civil war and revolution over it. You might also want to read the Bill of Rights. People seem to have conveniently forgotten these issues amongst all the sensationalism over the judgement.

The UK has never ruled by referendum. If anything your grievance lies not with this judgement or Brexit, but with the British system of government and legislature.

(10)(0)

Interloper

Blah blah blah bore on. If you’re that bothered about it go and fking join Class War…

Or chat it over with your cerebral sphere-booting hotel-frequenting chum…..

(0)(2)

Anonymous

I wish Sumption would sort his hair out.

(3)(1)

Anonymous

I wish Trump would sort his hair out.

(3)(0)

Anonymous

Touchayyyyy old bean

(0)(1)

Pantman

Touché“, perhaps?

(0)(0)

Interloper

Toupé ?

(6)(0)

backslaps

Just noticed that the top right hand corner of the judgment states “Hilary Term” – as in the way Oxford and Cambridge divide up the academic year.

Why is it set out in such a way that only Oxbridge graduates know and use, a specific institutional way of marking out a date – an old Oxbridge bias? the words “Hilary term” actually add nothing of value to the document in terms of actually knowing the date – empty words. Except i suppose, a little nod to the oxbridge dominance of judicial appointments.

Does not help the controversy surrounding judicial appointments and how they only appear to be from an Oxbridge pool, despite their being *shock horror* other unis out there – LSE, UCL, etc etc

Why not use the standard form, ie: 24/01/2017? Would be factual and accurate, more informative than “Hilary term”.

(4)(11)

Anonymous

Groundbreaking judgment and all you can do is whine about that? Silly pleb

(4)(4)

backslaps

Was a judgment that was anticipated far and wide since December 16 – no surprises there

(2)(0)

Anonymous

Wanker.

(5)(2)

Anonymous

The courts were first to name their terms Michaelmas, Hilary, Easter, and Trinity.

The universities simply appropriated this alternative calendar afterwards, because it sounded cool. Also, the dates of the Oxford terms are not the same as those of the courts.

(13)(0)

Anonymous

Cambridge doesn’t have a ‘Hilary’ term. It’s a very old-fashioned way of marking segments of the calendar, starting from September (the courts basically have the same summer holiday as academic establishments, i.e. August).

It’s nothing to do with elitism; it’s to do with age. The judicial system, Oxford University, Cambridge University, Southbank University… Guess the odd one out. (N.B. The answer is not “Oxford’s a complete dump”!)

(1)(1)

Anonymous

You are a grade A specimen.

Because you are simple and don’t quite understand, it must be elitism and old-boy’s network.

I would politely refer you to the HMCTS website where you can brush up on your knowledge.

(3)(0)

Anonymous

Have sex, please. I beg you.

(0)(0)

It's Miller time!

Can someone please explain why Gina Miller brought this claim? Was she just the ‘face’ of Remain, or was there more to it than that? I ask because she seems inordinately pleased with something that has no real relevance for her one way or the other.

(4)(4)

Anonymous

She had enough money to instruct Pannick on the JR

(5)(1)

Freshfields Trainee

Gina Miller is an immigrant! Should not even be allowed to bring this claim.

(5)(11)

Interloper

I do hope that’s a joke…

(1)(0)

Unemployed UCL Girl

Cannot wait for Brexit!!! All the immigrant students will have to leave and I’ll finally get a TC! British students should have priority for a TC. Damn Europeans and Chinese.

(4)(11)

Anonymous

Things aren’t as simple as that, even if this is a joke. Uncertainty in the economy reduces TC numbers. There’s a slight hint of this in the number of pupillages offered through the Gateway this year – lowest recorded (apart from 2013, which wasn’t a full year):

http://www.indx.co.uk/pupilbase/?mode=stats&rtype=gwapps

It could be that this is not a reaction to Brexit, but a temporary anomaly due to the change in deadline date. Time will tell.

Frankly if you have a (decent) degree from UCL and you haven’t got a job, then you have other problems to deal with.

(1)(0)

Anonymous

Can you please advise what happened to the rest of 2013? From what I recall it was a full year, I mean I wasn’t counting but I think there was 365 days.

(0)(0)

Anonymous

It wasn’t a full year for the Pupillage Gateway, listings only commenced in March of 2013.

(0)(0)

Banana Skins and Pongos

Irwin Mitchell is having second thoughts re: its merger with Thomas Eggar. It thinks the German firm may break away post brexit.

Rumour has it – Thomas Eggar cannot wait.

(0)(0)

Anonymous

I am eggar to hear the outcome of these merger talks.

(3)(0)

Anonymous

Here comes the usual “enemy of democracy” or “Brexit means Brexit” trite nonsense that the Brexiteers love to throw around when something doesn’t go their way

(2)(1)

Comments are closed.