Brexit Supreme Court Case: From Pannick’s Attack to the Loch Ness Monster
The debate about who has the authority—the government or the parliament—to trigger article 50 is the subject matter of the Supreme Court Case. The hearing which lasted 4 days, came to a close on Thursday (8 December). On the one hand, the government argues that it has the royal prerogative and executive powers to proceed with the Brexit negotiations without any parliamentary approval. On the other hand, the government’s position is challenged by the lead claimant, Gina Miller and other concerned citizens, including Deir Dos Santos. They are arguing that UK citizens’ rights would be annulled by Brexit and that only parliament has the legal authority to do so. The legal challengers say that those rights have been granted to them by the 1972 European Communities Act, and the government hasn’t got the power to remove them.
Gina Miller: a victim of Brexit witch hunters
On Wednesday, a 55-year old man was arrested on suspicion of racial communications in relation to Gina Miller’s online abuse. Miller has been the victim of a series of racially abusive and threatening messages through letters, calls and emails. She’s been threatened with murder and rape. She has been called an animal that should be hunted and beheaded, or someone who needs to be burnt at stake. A barrister, philanthropist and financier, Miller, has defied the attacks and remains fearless, fighting for her British home and European identity.
Day 3: A “Pannick attack”
On Wednesday, the third day of the hearing, David Pannick QC continued his case in support of Gina Miller. Dominic Chambers QC followed, representing Deir Dos Santos. The cases of the devolved governments, EEA nationals and expats were also heard.
David Pannick QC argued that the UK referendum was political and not of legal importance. In relation to Wednesday night’s vote on article 50, Pannick explained that a motion alone doesn’t give authority to the government.
Lord Pannick was praised by lawyers and newspapers. The Telegraph and the Guardian described him as “a superstar of the courtroom” whose “effortless clarity” put the 11 justices at ease. As John Crace of the Guardian said ironically, “A Pannick attack is a thing of zen-like beauty.”
Dominic Chambers QC, who is representing the hairdresser Deir Tozetti Dos Santos—with a UK and European citizenship—argued that a House of Lords paper, dated 3 June 2015, states that there isn’t any obligation for the UK government to implement the result of the UK referendum to leave the EU. It is only advisory and not legally binding.
Chambers explained that: “The doctrine of parliamentary sovereignty is not a general principle, it is the fundamental constitutional principle upon which our legal system stands.”
He also claimed that the government’s argument is grounded on “a fundamental misunderstanding of the doctrine of parliamentary sovereignty.” Under the doctrine of parliamentary sovereignty, it is necessary that parliament authorises the executive to cancel domestic rights. It is wrong, he said, to assume there is first a royal prerogative and then there are restrictions placed on it. Instead, there is the power of the parliament first which yields certain powers to use the prerogative.
Chambers said that the doctrine of parliamentary sovereignty impacts on actions which affect domestic rights. The European Communities Act is domestic law, so, in this aspect, the government’s powers are limited. Triggering article 50 will immediately affect rights in domestic law.
Scotland and Northern Ireland
Two other issues were touched upon on Wednesday. One was about the Scottish government, and how its consent on Brexit was of “constitutional significance,” James Wolfe QC, the lord advocate for the Scottish government, said. The other one, was about Northern Ireland, and how “it would be unconstitutional to withdraw from the EU without the consent of the people of the Northern Ireland.” Ronan Lavery QC and David Scoffield QC represented two Northern Ireland applicants, Green party leader Steven Agnew and Raymond McCord. McCord, whose son was murdered by the loyalist paramilitaries, Ulster Volunteer Force (UVF) in 1997, believes that Brexit would challenge the 1998 Good Friday agreement and disturb the peace process. Lavery said: "Withdrawal from the EU could have a catastrophic effect on the peace process and that delicate constitutional balance which we have reached."
• The Belfast Agreement or Good Friday Agreement was made between the British and Irish governments and eight political groups from N. Ireland. It acknowledges that N. Ireland wishes to remain part of the UK and that a section of the people of Northern Ireland and the majority of the Republic of Ireland wish to create a united Ireland.
Following on the issue of the devolved governments, Richard Gordon QC, for the Welsh government, said that triggering article 50 without consulting the devolved assemblies in Cardiff, Edinburgh and Belfast would be a strike at the heart of the UK’s unwritten constitution. With reference to the Sewel Convention—which deters Westminster from legislating devolved matters without the consent of the devolved parliament—Gordon said that, “Conventions are the only glue that can hold an unwritten constitution together.” He continued that the Brexit vote split the UK into four parts: “it is the most divisive political event that has happened over the past four decades and who is to determine what happens next ... it must be parliament.”
On the subject of EEA nationals, Manjit Gill QC, said that Brexit will affect the fundamental rights of people who have lawfully made the UK their home and are facing possible deportation if the UK withdraws from the EU.
The expats case emphasised the 1972 Act and how parliament granted aspects of its legislative sovereignty to EU institutions, something that cannot be undone without parliamentary consent.
Royal prerogative is like the Loch Ness monster
Helen Mountfield QC, counsel for the crowdfunded People Challenge, accused the government of exaggerating the powers of the royal prerogative, elevating them to mythical status. She said: “It’s much like attempts to catch the Loch Ness monster. Because no one has caught it, it must be assumed to still roam free.”
The 11 justices will depart without reaching a decision and will reconvene in the supreme court sometime next week for their private discussions. Their final judgement will be delivered sometime in January.
Wednesday’s vote on article 50
The government accepted Labour’s motion for the PM to reveal Brexit plans before triggering article 50. Yesterday, the House of Commons passed it by 448 to 75 votes, after it was amended by the government to endorse the PM’s March deadline. While the vote isn’t binding, it is, however, important because now MPs are committing themselves to Theresa May’s timetable to invoke article 50 by 31 March 2017. The Tory former Cabinet minister and Leave supporter, Iain Duncan Smith, described the vote as a “historic moment.” But there were many Labour MPs who abstained, while Green party MP Caroline Lucas, the SNP and the Liberal Democrats voted against the motion. The leader of the Lib Dems, Tim Farron, tweeted: “Labour & Tories holding hands towards a hard Brexit, refusing to seek the will of the people on the deal. I want democracy not a stitch up.”
It is said, that Labour will use the motion to put pressure on the government. Keith Starmer, the shadow Brexit secretary, promised he will push Theresa May to produce a detailed negotiating strategy which will be measured against five tests:
1. The strategy needs to address whether the UK will remain in the customs union and EU single market.
2. It should offer enough information so that MPs can scrutinise the government’s position.
3. Enough details should also be provided to the Independent Office for Budget Responsibility to produce detailed forecasts.
4. Scottish and Welsh devolution governments should also be heard.
5. Needs to offer a detailed plan so that everyone is in agreement.
If the tests aren’t met, Starmer said that Labour would seek to change the bill. But many MPs are concerned about signing up to the promise of a Brexit plan that still remains vague. Nine Labour MPs voted against the amended motion. Labour party’s Ben Bradshaw said he could not support the motion as amended, as it gave the government “a blank cheque to invoke article 50 without any of us being any the wiser about the government’s intentions.”
The government might have conceded to a plan ahead of the negotiations, but many commentators say that such a plan won’t be detailed and uncertainty will prevail. Reminding us of the old Jewish proverb, Giles Fraser, priest-in-charge at St Mary’s Newington and a Guardian columnist, couldn’t have put it better: man plans, God laughs.