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Exclusive interview: Joshua Rozenberg analyses the Brexit legal challenge hearing

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The early signs are that activation of Article 50 won’t be blocked — but anything is possible

Today will go down in constitutional law history; the day the Brexit legal challenge finally got its moment in the courtroom. Legal Cheek spoke to the country’s number one legal commentator, Joshua Rozenberg, to find out his predictions.

In a packed out court 4 of the Royal Courts of Justice (on one of the hottest days of the year so far), seven leading silks and two top judges took to the stage to grapple with the ins and outs of this tricky judicial review.

Though a full hearing isn’t scheduled until October, rumours are flying fast around legal London about whether this claim — brought by a humble hairdresser — could actually block Brexit.

The constitutional implications of this decision could be enormous…

Watch Rozenberg tell Legal Cheek‘s Alex Aldridge all about it in the video above.

Previously

Brexit legal challenge: Busiest court in living memory hears judges say case WILL be heard by the Lord Chief Justice [Legal Cheek]

40 Comments

Anonymous

AA sounds like such a little bitch next to JR

Anonymous

Lol, strong first comment.

Anonymous

A good interview. Very clear and straight to the point.

The final outcome will be pretty wild! Can’t see this objection to Brexit succeeding.

Just Anonymous

Thank you for a very interesting interview.

I agree fully with Rozenberg’s analysis and I can’t really improve upon it. The courts will treat this matter with the seriousness it deserves, but I would be amazed if they ultimately told the government that it does not have the prerogative power to trigger Article 50.

I think the best and simplest point against Lord Pannick QC’s argument is that the 1972 act is perfectly compatible conceptually with non-membership of the EU. The Act merely incorporates EU law into domestic law. Thus, we could have a situation where we choose to remain subject to some or all of EU law in order to retain access to the single market, for example. (I don’t want this outcome and I doubt many others do either, but that doesn’t change the fact that it is conceptually possible.)

Thus, any suggestion that the 1972 Act is incompatible with leaving the EU and must be repealed/amended by an Act of Parliament first is, in my view, logically unsustainable.

Anonymous

If you’re suggesting that if we just don’t repeal the ECA then we can just access the single market on that basis then that’s clearly incorrect. Yes, we can choose to say that EU law applies post-Brexit, but that will be a unilateral decision of the UK and won’t have any effect on the EU or other states. It’s a very poor argument – North Korea could say it’s a member of the EU and enact legislation like the ECA. Would that affect the EU or give access to the single maket? No.

Just Anonymous

To use one of my favourite dichotomies, you are either dishonestly straw-manning me, or you are too stupid to understand basic English.

No, of course I am not claiming that merely by retaining EU Law, we could unilaterally force our way into the single market. There were two massive clues leading you to this conclusion: (a) it’s idiotic; and (b) I never said it! What I did say was:

“Thus, we could have a situation where we choose to remain subject to some or all of EU law in order to retain access to the single market, for example”

This is absolutely true. We could have such a situation – if we reached such a deal with the EU (an assumption so blindingly obvious, I didn’t think it needed saying!)

Alex's Mother

You should stop slouching Alexander. And everybody else can stop being mean to him and his magazine.

Not Amused

The best and simplest point is that the MPs, even if given a vote, would have to vote to support the use of Article 50 (as even arch Europhile Dominic Grieve has accepted).

17.3 million people voted out. That can’t and won’t be ignored. It is simply delusional to imagine anything else.

So the entire thing is pointless. I don’t think it can win (because it must be a prerogative power). But even if it wins, the outcome is the same. Meanwhile my tax money is wasted by these self obsessed spoilt children who I term – the remainiacs. Grow up. Stop wasting public money. Stop fantasising that you can cheat, trick, lie or scheme away a democratic vote.

(p.s. – it does matter who the claimant is, we want the claimant to be the richest one – so the public have a chance of getting some of our cash back. So thank god it is Miller)

Big enough

I’m amused by Not Amused. It’s not at all clear which way Parliament would vote but its members must vote their own consciences and not according to some Brexiteer’s misplaced idea of mandate. And they will be heard.

As for the legal matter, there’s this rather lovely question from the noble Lord Davies to answer:

“Is it not inconceivable that the royal prerogative should be used to withdraw statutory rights? Is that not what we had an argument with Charles I about in the 17th century?”

As for delusion, well I trump your 17 million with the 29 million who did not vote to leave the EU. Only 37.5% of the electorate actually put their cross in your box. And that’s a worry if we are going to impose such a gargantuan change on the whole country.

Anonymous

And even less put their cross in yours.

Big enough

Well, we don’t want to change anything. Apparently you do. That’s why wiser heads elsewhere impose thresholds quite properly in referenda, or else don’t bother with them at all – as if asking a lot of xenophobic pensioners what they think should decide matters like this. What else shall we let them decide for us?

Anonymous

Eursceptics whined about the EU for 41 years.We have a LOT of catching up to do.

Probably Anonymous

We’re a Parliamentary Democracy. Who cares what the people think? They won’t think the same thing tomorrow

Andrew Evans

The AC gave permission for the govt to break EU law even before the vote in their judgement in the Shindler case. They interpreted Art 50.1, “[a]ny Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” such that it is the decision to withdraw which is in accordance. This just further complicates the issue, does Art 50.1 mean the decision, the withdrawl or both. Is the government just allowed to ignore EU law before the decision is/was taken to leave? Isn’t EU law part of our constitution anyway?

Anonymous

I think the concern is that it’s fairly clear that underneath the stated objective of challenging the process of whether an act is required, is a secondary objective of trying to overturn or avoid the result itself by hoping the largely remain commons chamber vote as such if it’s deemed an act is required. If the judiciary somehow overturn the will of the people in a democratic referendum, I don’t see how our democracy could ever recover. I can only hope it’s all academic.

Big enough

Since ours is a representative and not a direct democracy and Parliament is sovereign, it has nothing to recover from. It was an advisory referendum. Let Parliament be advised. Quite properly, it should decide. According to Lord Lisvane, whatever the courts decide, (and who really thinks the government wants to risk a ruling on its prerogative powers?) it is impossible to think the government can proceed to trigger Article 50 without Parliament’s backing. I agree. It would be monstrous.

Not Amused

Yes I see … monstrous …

Would you mind terribly leaving your name, address and bank account details? It’s just that this ridiculous court case is going to cost me and our fellow citizens quite a lot of cash – and I’d feel a lot better about that if the Remainiacs could satisfy any costs order made against them.

Big enough

Whatever it costs, if this nonsense of a Brexit is pursued, it will be nothing compared to the damage this referendum has caused to business confidence, inward investment, long term tax revenues, the hopes and aspirations of generations to come, our reputation in the world. Furthermore, if this nonsense of a Brexit is pursued, it’s ten years or more of negotiations in order to re-write trade deals secured under preferential terms by the EU substituting instead inferior and less advantageous versions, that is, if anyone actually has the time to talk to us and if we can find some negotiators to work for us. And then there is the problem of re-legislating in all manner of different areas…what a c..k up.

Anonymous

Monstrous. Hmmm. Why wasn’t any of this language used with the last couple of referendums on voting method or the Welsh assembly. Perhaps as the level of vested interest wasn’t very high. We’ll be leaving the EU one way or another. If we don’t, and the legal profession gerrymander it, UKIP would get 50 seats the next election. Probably an even worse outcome.

Big enough

What gerrymandering? Mr Dos Santos et al have an argument and they will be heard. The question is not whether the referendum should be set aside, but whether Parliament is sovereign in the matter. But the referendum determines nothing substantive. It is not binding.
If UKIP’s political capital is raised in the manner in which you suggest, then so be it. And why not? Let them make in Parliament whatever case they can make if they can get whatever support is due to them as single issue fanatics. Let their case be scrutinised fairly. Far better that they are compelled to make a case in this way than to continue with the present arrangement whereby their dubious sound bites are all their supporters hear and a big red bus driven round the country emblazoned with a lie is all that they see.

Anonymous

You don’t really understand this. Not listening to people and dismissing all and every concern they had with a waive of the hand by liberal elites got us in to this very situation. If there is now an attempt to subvert the referendum, that everybody entered with the understanding it was binding, whatever the legal underpinning, is simply going to exacerbate the current division in the country. I didn’t vote for UKIP at the GE, am rationale and well educated, but if this referendum result is legally stolen, I would vote for them, as I suspect millions of others would.

Big enough

I’m sure the people have very legitimate concerns about a great many things. I suspect these concerns were expressed by a considerable number of voters on the leave side. I doubt that most of them were answering the question they were asked. They were answering a different one. Or else they were raging.
But you go ahead and vote for whom you like. It is interesting that your claim about what people believed was true about the referendum relies on a related claim that the people were deceived. Lots of claims like that. Sounds like the whole thing is completely unreliable.

Mr Ben

We have a representative democracy, but occasionally a decision is so big we decide a referendum is needed to directly ask the people. If you lose this referendum, the losing side can’t just fall back on the representative democracy position. If so, what’s the point in the referendum? I strongly suspect the legal process will be rejected on this basis, but anything is possible I guess.

Big enough

The bigger the question, the less able the people are to answer it.
What is this notion of “falling back” onto representative democracy? Who moved away from it? The referendum was non binding, advisory or consultative in status. The claim has been that the executive made a promise to the people based on a notion of executive authority, indeed, based on advice it had received in connection with its authority. Yet whoever gave such advice will have pointed out the many difficulties associated with it. (Sounds very much like the situation Lord Goldsmith was put in on the Iraq war). The government has not revealed exactly what the advice was. Nobody has actually asked them to. But the government could have attempted to legislate differently. It could have asked Parliament to have made the referendum binding – explicitly asked it to transfer its power, as it did with AV. But it did not do so? Why do you think that is?

Anonymous

My husband pointed out this morning that as we were taken in to the EU on the results of a referendum, if this challeng is upheld then we must have been taken in to the EU illegally, so what implications does that have?

Big enough

It doesn’t have any implications.

Tell your husband that we were NOT “taken in to the EU (sic) on the results of a referendum..”

Anonymous

No, indeed. We entered using prerogative powers. And we’ll leave using prerogative powers. Because the powers haven’t been cut down in the meantime. Which is why this challenge is a futile and wasteful exercise.

Interesting watcher

Parliament is sovereign. We are not going to get into the judiciary ordering Parliament around on major government policy because that way lies a train wreck for law and order.
The Tories have accepted Brexit means Brexit, they have risen to an 11 point lead over Labour, they’ve see May wipe the floor with Labour on Trident and PMQs and realised that they now are on to a winner. There are an additional 10 Labour MPs and 1 Ukipper who will back Brexit, so it will be policy however it is achieved.
They know if they don’t deliver Brexit they are toast. In 1997, contrary to popular opinion, Blair was not popular, it was the Tory vote of 3m that stayed home. Next time it won’t be 3m staying home it will be at least 3m for each major party voting for UKIP on top of the 4m they have already. So Brexit will be achieved come what may. Labour may be in a death wish, the Tories most certainly are not.

Just Anonymous

If ‘remain’ had won the referendum, ‘Big enough’ would (rightly) be telling us that the result was final and we couldn’t leave the EU.

However, since his desired side didn’t win, he’s now telling us that Parliament can (and should) overturn the result.

If Parliament refuses to do so, you can guarantee he would then argue that the UK courts could (and should) block it.

And if all that failed, he would tell us that the situation had fundamentally changed and we needed a second referendum. If ‘leave’ won again, that would of course be advisory, but if ‘remain’ won, that would definitively settle the matter.

While I voted remain, I think it was this sort of paternalism and contempt for the people’s views that pushed a lot of people into voting to leave the EU…

Big enough

You are just not conceptualising this properly. There is something very important to say about the status quo – the thing that we know, constitutionally, as opposed to the thing we do not.
Practical finality comes from leaving – we undo the status quo and can never re-acquire it,
Practical options remain with us if we stay – we can undo the status quo at any time or we can reform it if we choose.

There is no result to overturn because the referendum outcome was and is advisory in nature. The “result” is the conclusion of a process and it has not reached the end.

Just Anonymous

Your first two paragraphs are irrelevant. Those arguments were quite properly put forward during the referendum and the people rejected them by voting to leave.

As for the third, there patently is a result: the result of a public referendum in which the people voted to leave the EU. I can only repeat what I said before: your refusal even to acknowledge this as a ‘result’ demonstrates precisely the ‘sort of paternalism and contempt for the people’s views that pushed a lot of people into voting to leave the EU.’

Englishman and proud

if turkeys where able to vote for Christmas they would think of presents and all the good things to come! so would vote for it without thinking. We voted people into office to make such major changes to our lives to our lives.When we went into two world wars we stood together as is the way of a true Englishman .I feel the lies before the referendum on both sides were one of our lowest moments , the exit from the eu will be harder on this country than has been seen for many years and will test the metal of the 17million ,lets see how many can stand the heat!

Keith

In the interview it is said that it would be too late to decide the law once Article 50 was invoked. However as Article 50 requires that it can only be invoked in line with the “constitution of the member state”, then it seems to me that this court case, if heard in a couple of years time, could be used to withdraw Article 50 if the UK does not like the terms of the negotiations and concludes it would have been better to remain.

To be clear then, this is what we should do……

Let the Prime Minister write to the EU telling it that it is leaving the EU via Article 50.

We negotiate terms.

We decide we like the terms and leave; or,

we don’t like the terms and wish we do not have to leave.

Let the Remainers take the UK government to court arguing that it did not invoke Article 50 as per the UK’s constitution, because the UK’s constitution requires either a vote in Parliament or an Act of Parliament.

The Supreme Court rules that Article 50 should not have be so invoked, and therefore the UK government acted ultra vires and not in line with the constitution.

The Article 50 application to the EU was therefore void and we never ever left the EU or asked to leave to EU according to Article 50’s requirement.

Just Anonymous

And what happens if the Supreme Court (as is the overwhelming probability) rules that the PM does have the Prerogative power to trigger Article 50 by herself?

Anonymous

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

Anonymous

I don’t have a problem with people campaigning to change the public’s mind. I do have a problem with certain people sneaking around with lawyers and Parliament, in an attempt to shaft the public.

Job

Easier to remove Japanese Knot-weed that exit the EU, 43 years membership and about 2,500 treaties/ legislation etc to untangle….it will take years

J and M

In the right-wing press, we see many letters from people who confuse the Commonwealth and the British Empire. They think that Canada, Australia, New Zealand, etc, are at our beck and call, and that we can build trade links with them promptly and on our own terms.

The Australian PM, Malcolm Turnbull, has recently issued a very terse statement in reply to articles in the right-wing tabloids which claimed that, during the recent summit in China, Australia had offered Theresa May a fast-track trade deal with the UK. Mr Turnbull said that the priority of his country was to negotiate a trade treaty with Europe; he added that there would be no question of Australia negotiating with the UK until the UK had successfully left the EU; he also said that, in his opinion, Brexit would take at least 2 and a half years.

Canada has just spent 7 years negotiating a trade deal with the EU. The treaty is currently being prepared, and soon German cars and French wines will be sold at favourable rates in Canada. Canada, in exchange, will be able to profit from the large EU market.

Both Canada and Australia obviously prefer trading with 27 countries than with a single one. They may be part of the Commonwealth but they look after number one when it comes to their economy.

The US also prefer negotiating a trade treaty with the EU- remember the ‘back of the queue’ speech made by Obama, a speech which received the immediate backing of Hilary Clinton. It would seem that our special relationship with the US does not include the economy.

This is why we hope Parliament can take charge, have a proper debate, and, hopefully, stop this Brexit madness.

Not Amused

No.

The EU, Mr Juncker in particular, have ‘fucked up’ the Canada trade deal. It will not go through. Neither will TTIP.

You are I am afraid, just another remainiac trying, like King Canute, to ignore the obvious.

J and M

We saw an article in the quality press recently concerning New Zealand. Since the referendum, the number of people wanting their country to become a republic with a New Zealander as head of state has increased dramatically.

The reporter explained that the many people he interviewed had all said they did not want to be associated with a country capable of turning its back on a huge, profitable market without having made any plans for the future.

It is not only the UK economy Brexit is hurting: it is also the image of the country. Similarly, also in the quality press, we read a piece by a British financial expert (cannot remember his name). After the referendum, he went to Hong Kong, the US and India for various meetings. Everyone of the top executives he met asked the same question ‘How can you be so stupid? He felt deeply humiliated.

We have become a laughing stock all around the world. Fortunately, it is not too late to reverse the situation. Let Parliament debate and vote on the matter.

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