Article 50 challenge: An autopsy of the Supreme Court livestream

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By Michael Walker on

What did we learn, who stole the show, and who is going to win


To some, it was no OJ Simpson. But, overall, I think the Brexit Supreme Court case has been pretty fun.

There was that time Lord Sumption used an incredulous raising of his eyebrows to wither a QC; there was that moment the Daily Mail did a shocking expose on how ‘judges know people who publicly supported Remain and have worked at organisations where other employees within those organisations have criticised Brexit!’ (eye-opening stuff); or when people noticed that Lord Pannick sounds like ‘panic’ and hilarity ensued.

But there have also been some moments of deathly seriousness.

The fact Lord Neuberger had to begin the case by noting death threats had been made against parties within the action really did unmask the current aching cracks at the heart of the United Kingdom’s constitutional order. Parties arriving flanked by bodyguards reminds us of the very real price that people like Gina Miller are having to pay for legitimately taking this action — and it goes far deeper than the £60,000 she has needed to pay to protect her life.

Edging away from these more sinister elements of the case, let’s plunge ourselves full-faced into the excitement of it all.

The main protagonists

Stepping up to the mound to bat against the first pitch of the World Series, a member of the local softball team.

It’s fair to say the justices reacted with an underarm throw to attorney general Jeremy Wright QC, who, having been cruelly called a “a third-rate conveyancing lawyer”, genuinely did a decent job.

It was notable that he went unquestioned by the justices. Only when the government’s slugger stepped up to the plate did the curve balls start flying and James Eadie QC was really pushed by Lord Sumption eyebrow-acrobatics. *Extended baseball metaphor over*

Now, for an admitted legal pipsqueak like myself, it is completely ridiculously for me to make criticisms of what are incredibly qualified and accomplished lawyers, to who I couldn’t hold a candle. And yet, here I go again.

The attorney general of Northern Ireland is called John Larkin, and by all accounts he had a disaster. It couldn’t have happened to a better man (see his attempt to invalidate all equalities legislation in Northern Ireland because it didn’t allow Christian bakers to discriminate against a gay-marriage-supporting customer). At the Supreme Court, Larkin was doggy paddling in an Olympic pool, causing me to laugh heartily and obnoxiously in his general direction.

Then Lord Pannick, for the claimant, began to speak. The words whirled around him, like light reflecting off the water — a thing of beauty, disguising its inherent, captivating power. The gentle rise and fall of his voice lulled you back to laying upon a lilo in a Spanish villa’s pool.

In other words, he did law real good.

The government’s arguments

Wright began by saying that “parliament can look after itself”. This is unbelievably bizarre, and akin to arguing that a tough guy shouldn’t have the protection of the criminal justice system. But the law does not apply differently depending on the strength or otherwise of the victim. Equally, constitutional law principles apply regardless of how powerful the beneficiary of those principles is.

Another of their arguments was that the foreign policy prerogative can be used to change domestic rights because there are already examples of this happening. Eadie and Wright pointed to how UK ministers within the Council of the European Union, for instance, can alter EU laws and rights by acting within the prerogative on the international plane.

But this is nonsense.

Firstly, it is an extreme simplification of how rights are adapted through the Council; it isn’t a matter of a UK minister acting alone, in fact they could vote against or for a change and be overruled. Saying that a minster contributing to a collective decision making process on the international plane is analogous to a Secretary of State using the prerogative to take the UK out of the EU on his own isn’t sustainable.

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As well as being very different vehicles, they’re proposing to do two very different things. As Lord Mance puts it, there’s a “huge difference” between changing the rules of the club and deciding to leave the club. For the former, the domestic impact that stems from that collective decision also travels through a path which is parliament-endorsed — the ‘time to time’ provision within the European Communities Act 1972. In contrast, Article 50 notification’s domestic impact would not be travelling down a parliament-endorsed path; no statute has endorsed such an action having domestic impact.

To simplify this, it’s like saying a path is travelable by everyone if it is travelable by anyone — a jogger can run down a motorway because a car can. Well, no, not only are the vehicles of travel entirely different, but the car’s passage on that path is explicitly legally permitted whilst the passage of the jogger on the motorway is not. The jogger can’t justify his action by pointing to the actions of a car.

The claimants’ arguments

In terms of the long list of counsel involved, outside of my disappointment that the Scottish Lord Advocate did not turn up in full brave heart regalia and face paint and begin his submissions with a guttural cry of ‘FREEDOM’, there is the performance of Helen Mountfield QC for the People’s Challenge which crystallised the complex issues and expertly spread bountiful amounts of scorn upon the government’s case.

Immediately after came Manjit Gill QC. Gill’s voice electrified the courtroom air, as it thrust a genuine anger at the government’s argument into the proceedings. A strong start it was to stare straight in the eyes of the justices and declare with beautiful theatre that “hard cases make bad law — but this is not a hard case!” It was a massively different approach, and his role appeared to be to highlight the impact of the government’s intended actions on vulnerable people. He injected his argument with emotion, ensuring the very real consequences for European Economic Area (EEA) children living in the UK was at the forefront of everyone’s mind — a captivating image when set against a backdrop of complex, legal fencing:

Be ready to pack your bags and go — it is that stark…we are going to use you as a bargaining chip.

He exquisitely painted the bleak reality at the heart of an astute legal point: leaving the EU exposes EEA-born children living here to criminal liability and expulsion as soon as the withdrawal occurs which, according to the government, could legally happen without any substantive parliamentary input. Making something a criminal offence which previously was not without reference to parliament is an obscene breach of parliamentary sovereignty, and putting it in these terms urgently and persuasively increased the gravity of the consideration the justices must make. Lord Neuberger seemed to enjoy this submission, with its energy and force of emotional importance; he would interject with supportive clarifications and couldn’t have been quicker to grant Gill a few extra minutes to develop his argument.

Overall, my coveted ‘Favourite Supreme Court Advocate of the Miller Case’ gong goes to Manjit Gill QC, who paired his legal ripping apart of the government’s case with genuine and convincing exasperation at the weakness of what they were arguing, picking up what Eadie has said and discarding it with disgust — “just a complete nonsense!”

His final words deafened those of Eadie and will continue to reverberate within the justices’ heads, long after the week of the hearing:

This is no time to turn a flexible constitution into a slippery one.

What we learned

Outside of the fact that Lord Sumption really ought to sell his own range of ties?

Well, what has been clear is the diversity problem at the bar and judiciary. It is one thing knowing the facts (only 13% of QCs are women; only 5.9% of all judges are BME; only 6% of all barristers are from a working class background), but when you see a high profile case such as this being livestreamed and almost everyone is white, the vast majority of those in the first stream of rows are male, and nearly every one of the advocates and Supreme Court justices sound like a Downton Abbey extra, it hits home in a very visceral way. It’s not something capable of being dealt with in this article, but it’s worth noting.

We were also reminded that this was a case which, on the law, the government really shouldn’t have appealed. The difference in the amount of questions asked of Pannick and Eadie must not be construed as Supreme Court bias — it’s reflective of the gaping holes in the government argument, which were exposed by the High Court judgment and were incapable of being plugged before the appeal.

By the time Eadie was making his final reply on the last day of the hearing, the justices had begun playfully batting his argument around like a bear would do with its food — a justice casually turned to Eadie and asked him “isn’t that just a Jury Point (‘one that had no logically persuasive force but might influence a jury which is not too much concerned with logic’)?” Eadie looked back in horrified amazement, and frantically assured them it was nothing of the sort. “Now, there’s nothing wrong with a jury point if it’s a good one” gleefully contributed another justice. The bench erupted with laughter; Hale chimed in by noting that “well, we’re the size of a jury”, which was both accurate and hilarious. They chuckled while Eadie grimaced, the laughter splitting through the seriousness of his argument like a hot gavel through butter. His argument evaporated into the ether, like the government’s chances had, long before.

‘Law but a poor player’

Overall, nothing across the four days has shaken my belief that the government will lose this appeal and I am happy to stand by my prediction that it could be unanimous.

I think on the devolved issues there will be a split, and it will be fascinating — I’m particularly in love with the argument about the Good Friday Agreement (see Joshua Rozenberg’s Legal Cheek article). But the reaction of The Telegraph, the Daily Mail and gutter politicians like IDS and Farage is equally as predictable.

With that in mind, I’ll quickly note that this is the latest instalment in a series of articles I’ve written on Article 50 for Legal Cheek. I ended up commandeering a famous Shakespeare quote for each, but for this article, and for this topic, it was more difficult. I have found the whole legal battle fascinating but the reaction to it has been a fever pitch of nastiness; a crescendo of vitriol. As such, I will end on the only Shakespeare quote, slightly adapted, that I felt spoke to this fall out:

[The law is] but a walking shadow, a poor player, that struts and frets his hour upon the stage, and then is heard no more; it is a tale told by an idiot, full of sound and fury, signifying nothing.

Michael Walker is a law graduate from the University of Cambridge. He has been offered a training contract.

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