LIVE: Government appealing against Brexit powers in Supreme Court


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That’s it for today and this wraps up the final day of the Brexit challenge at the Supreme Court.



Government’s closing argument is that EU rights are only temporary and depend on EU membership




Richard Keen QC, Advocate General of Scotland, describes the Sewel Convention as a “self – denying ordinance”.



Time for government to respond.

Lord Keen about why devolution does not apply to Brexit


Green QC summarises: “Only parliament may authorise notification under article 50”.



Back in the courtroom. First this afternoon is Patrick Green QC, representing Fair Deal for Expats, a migrants group from the UK living abroad in the EU.



Gill QC says nobody expected the leave vote, nobody expected Brexit to become a reality.

He is fighting for ‘velnerable’ people who might be deported as a result of Brexit; says they deserve to know their future.


Manjit Gill QC is now up representing other interested parties – people from other EU countries who live in the UK. This is the only group icluding children

He says: “Hard cases make bad law – this case is not hard.”


Helen Mountfield refers to prerogative power as the Loch Ness monster:




Helen Mountfield argues Brexit, which in effect will wave people rights away and change the law, cannot be triggered without parliament’s consent.



That was all from Gordon QC. Up next is Helen Mountfield QC for the crowd – funded People’s Challenge.



Gordon QC argues that triggering A50 would have implications for Wales and powers of assembly.




Brexit is the most divisive political event, according to Gordon QC: “The Brexit vote split the UK, it split it into four parts. We have absolutely no quarrel with the vote …but 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”.




Gordon QC makes his first point by saying: “A child of six could understand this point”, referring to his argument that prerogative power cannot be used to “dispense with laws made by parliament”.

He claims that the power for the Government to trigger Article 50 without parliamentary approval could not lie within the 2015 act.


With this Wolffe QC finishes his submission.

Up next is Richard Gordon QC representing the Welsh government.


Wolffe says: “Fundamentally, this case is about who has the power to change the law of the land”.

Lord Neuberger says if the justices accept that notification does not require parliamentary legislation, “plainly the convention does not apply”, but if they decide it does require legislation, then the convention will apply.

He suggests that the Supremes’ decision on who has the authority to trigger A50 will determine their decision on Scotland’s independence.


The Lord Advocate of Scotland, James Wolffe QC, continues from where he left off yesterday on the Sewel Convention.

He says: “A bill to withdraw the UK from the European Union would engage the convention because of the effects it would have with regard to devolved matters.


And the crucial last day of the Brexit appeal begins at the Supreme Court. Yoana Nikolova reports.

Important to say this is the final day of the trial, however, decision will not be made this afterrnoon.

Justices will have about a week to think and announce their decision in early January.


And that was a wrap for the third day of the Brexit appeal. Join us tomorrow for LIVE updates from the Supreme Court.


Wolffe QC conceded the Scottish parliament has no power to veto Brexit, but he still argues that Scotts’ consent matters.


Wolffe QC argues that withdrawal from the eurozone “will affect a significant change on the powers and responsibilities” of Holyrood and the Scottish government



Wolffe QC says the consent of the Scottish parliament to legislation passed in Westminster is of constitutional significance.



James Wolffe QC, Lord Advocate for the Scottish government now up to argue that Article 50 affects devolution matters and thus, requires Scottish people’s consent


To sum up:


Article 50 would not be constitutional.


Ronan Lavery QC, who represents another NI applicant, is up now.

He says the 1998 Agreement transfers sovereignty to the citizens of NI, therefore, the constitutional change is


Lord Neuberger sums up Chambers QC’s argument – parliament should have told the courts what it meant by adding provisions to the 2015 Referendum Act.

But since parliament hadn’t, it was not to the courts to guess what was actually intended.




Schoffield QC continues that the NI Act 1998 which covers the special relationship with the Republic of Ireland and the EU law, would be unlawfully affected


Schoffield QC says NI Act is not neutral as to continued membership of EU.



Time for David Schoffield QC, representing Agnew, a Northern Ireland applicant, now to stand up and give his submissions on why ministers don’t have the power to trigger A50.



And at 15:15 we’ll be hearing The Scottish Government’s submissions why ministers have no power to trigger Article 50


Waiting to hear arguments about whether NI’s unique status has a bearing on triggering Article 50


Justices are back from lunch and ready to resume.


1972 European Communities Act was only enacted because of parliament’s intervention, so chambers say only parliament itself can revoke it.


Chambers now citing the Bill of Rights, referring to the evolution of parliamentary sovereignty.

Says no rule can override an Act of Parliament



Lady Hale confirms the Referendum Act did indeed have an effect and that was the referendum. However, the question whether the referendum result has an actual effect still stands.



Lord Pannick says: “2015 Referendum Act doesn’t address the division of power between the executive and the Parliament”, therefore, Brexit power is still in the hands of Parliament



Neuberger says the 2015 referendum has no influence as matter of law, it only has political influence.




Lord Hughes specifically asks Pannick what type of legislation will be required to trigger Article 50?

In answer, Pannick goes back to his fundamental argument and points to areas where human rights will be lost if the UK left the EU


Lord Pannick QC continues off where he left yesterday – whether a court can consider what ministers said about the purpose of a bill.

Lord Kerr tells Pannick it would be unreal to ignore what was said in Parliament. Lord Neuberger says it can be a treacherous course.

Lord Pannick argues that if the court can look at what ministers said to the public it can consider what ministers said in Parliament.


Day 3 of the appeal at the Supreme Court begins, Yoana Nikolova reports.

Lord Pannick QC for Gina Miller continues submissions.


That’s all for today. Join us tomorrow for the third day of the appeal at the Supreme Court.



Judge Lord Carnwath says: “I for my part don’t see how helpful it is trying to look at the intention of Parliament in 1972.

“No one was contemplating the possibility of withdrawal and there was no provision in the treaty for withdrawal.”




Gina Miller’s QC rounds off: “The general message conveyed by the 1972 Act is very clear indeed as to Parliament’s commitment to the new source of law.”


Gina Miller’s QC Lord Pannick told the justices: “It (the 1972 European Communities Act) was intended to achieve a constitutional revolution in legal terms.

“It’s inherently implausible that Parliament intended in 1972… [that]it could all be set at nought by the exercise of prerogative powers.”

Lord Sumption, one of the 11 Supremes, says there was even a suggestion “the primacy of EU law meant you could never withdraw.”

Lord Pannick says: “Parliament has created – Parliament can take away.”


Lord Pannick summarises, citing the 2011 European Union Act: “It’s Parliament which is in control here.”


And here are the seven reasons why the government’s case lacks basis, according to Lord Pannick:


Parliament could put “conditions or requirements” on invoking Article 50, Gina Miller’s QC Lord Pannick said.

“The court cannot assume that the question put to the electorate in the referendum is the only question parliament would wish to consider,” he said.

“Parliament may wish to express a view on what information it needs from ministers before approving notification.

“Parliament may wish to impose conditions or requirements on the government.”

He rushes to add that he is not inviting MPs to do any such thing – just describing that the situation could be.



Gina Miller’s attorney, Lord Pannick, opens by saying: “It would be quite extraordinary if the 1972 Act could be set at nought by the actions of a minister acting without Parliamentary authority. He called this a “fundamental change”.

Lord Mance asks him for a reference.

Lord Pannick answers: “Parliament can do what it likes. But the idea ministers could revoke this fundamental change to our constitutional order, in my submission, is inherently unlikely.”

He argues the government’s case is wrong in seven fundamental ways and sets to outline them all in his speech.


Mr Larkin argues NI has no power and right to stop the triggering of Article 50

He uses the example of the 1998 Northern Ireland Act.

“No provision in the Northern Ireland Act purports to limit – or has the effect of limiting – the powers of the UK government in international affairs,” he says.



NI’s Attorney General John Larkin brings to the Supreme Court’s attention the question of whether Article 50 would conflict with Section 1 of the Northern Ireland Act 1998, which devolved power to the region.

He says the 1998 act is “effectively a constitution” – which differentiates it from the Scotland Act, which it was argued earlier was just legislation.


Lunch break is now over and justices are taking back there seats.

Now it’s time to hear from the Attorney General of Northern Ireland John Larkin, followed by lawyers for Gina Miller – who brought the original case to the High Court.

This is the first time the 11 justices will hear arguments in support of Parliament having a say in triggering article 50


Don’t let the complicated seating plan confuse you! Here’s a handy explanation:






Lord Keen on devolution: the Scottish Parliament should not be allowed to veto the triggering of article 50.

He says: “Our relationship with the European Union is not within the competence” of the devolved nations.


Now over to Lord Keen QC,  Advocate General for Scotland.

He is now directing the 11 justices to take a look at 18th Century Scots legislation.

The Judges shared a joke about the law being mercifully short at barely a page and a half long. Lord Keen says that’s pretty standard for Scottish legislation.


He concludes: The case against the government is a “constitutional trap”. The court would be imposing a new rule in a “highly controversial area”.


The Attorney Genereal begins his closing submissions.



Eadie argues that the other side’s case involves “tight-rope walking”, ignoring the legislation as they say the prerogative never existed to change the law.

Eadie claims they took a number of generally accepted principles and invented a new principle, pressing the general principles outside the context in which they were employed.



Lord Mance says the decision itself to join the European Union was taken by the government but it was put to parliament for approval.

Lord Hughes asks what will happen to EU law when the UK leaves the EU. Eadie says much of it will lapse.


The right question to ask is whether the government has taken “bites out of” (i.e. limited) the prerogative, Eadie argues.


Back to royal prerogative



Again, Eadie says the 1972 European Communities Act makes no provision for withdrawal.

He says there were parliamentary motions before we signed the treaty of accession but they were not legally binding, they were simply parliament’s choice about how to give its permission and how to get involved.

Eadie says the European Union Referendum Act 2105 was intended to give force to the will of the people.



And we are back for the second day of the Brexit appeal at the Supreme Court, Yoana Nikolova reports


Join us again tomorrow for the second day of the appeal


Turning to the 2015 legislation that authorised the EU referendum, Eadie acknowledged it did not explicitly explain how the result should be put into effect.

But, he said, that did not mean that the act was, as the High Court ruled, “legally irrelevant”. It implied that the royal prerogative should be used to implement withdrawal, Eadie said.

“Was parliament in 2015 really in setting up the referendum doing nothing more than simply reserving to itself the right to leave the EU?” he asked. “Not merely is it highly improbable, but that would run counter to the repeated statements of ministers and the government.”


The European Union (amendment) 2008 Act, which incorporated the Lisbon Treaty, had to consider article 50, and this was one of the principal changes introduced by Lisbon, says Eadie.

He argues that it could have restricted the exercise of prerogative powers by the government but didn’t



Siobhan Fenton, Social Affairs Correspondent @ The Independent urges men to take a break and hear what women at the Supreme Court have to say:




Lord Wilson asks: “You’ve shown convincingly that our accession to the EEC (the forerunner to the EU) in 1972 was a joint effort by parliament and prerogative, can you show that pulling out will not require a similar joint effort?”

Eadie, of course, objects. He says you need a joint effort to go in to transfer powers to the UK but not to get out. Doesn’t seem to convince the justices.


Eadie goes on to say the European Communities Act 1972 made no provision regarding any decision to subsequently withdraw from the European treaties.

The attorney general says the wording of the act does not restrict the government’s prerogative in any kind of way.

Eadie says that the act does not limit executive powers because the long title of the act does not say “for and in connection with”, unlike other acts.

Under the ECA Act 1972, parliament was merely facilitating membership, should the government with its prerogative take the country into the EEC, argues the attorney general.


The Attorney General says the CRAG represents a “considered decision” to leave withdrawal to government, the attorney general says.

Nonetheless, justices are questioning whether this was indeed a “considered decision” to leave withdrawal to government. Where is the evidence?


Court back in order:


PM Theresa May’s spokeswoman said at a media briefing in Westminster: “While others are seeming to make clear that they want to frustrate the will of the British people by slowing down the process of leaving and trying to tie the Government’s hands in negotiation, the Government is getting on with respecting what the British people decided and making a success of Brexit”.


Andrew Woodcock from the Press Association reported that the International Trade Secretary Liam Fox has made a written statement to Parliament confirming that work was under way to register the UK with the World Trade Organisation – WTO as an individual country, in preparation for the day when Britain leaves the EU.

Dr Fox’s statement reads: “In order to minimise disruption to global trade as we leave the EU, over the coming period the Government will prepare the necessary draft schedules which replicate as far as possible our current obligations”.


Jeremy Wright, the Attorney General, told the 11 justices at the supreme court that the EU referendum had been carried out “with the universal expectation that the government would implement the result”, at the outset of the crucial constitutional case.


James Eadie QC, who developed the government’s arguments, said that the power to make war and peace has long been part of the government’s executive powers. He said: “It’s no small thing to alter the constitutional balance by limiting long-standing powers.”

Court adjourns.




Mr Wright said the High Court had reached the “wrong” decision.
It was for the Government to exercise prerogative powers in the conduct of the UK’s affairs on the international plane.
He told the judges that triggering Article 50 “will not be an exercise of the prerogative right on a whim or out of the blue” but was part of a process in which “Parliament has been fully and consciously involved”.

Attorney General Jeremy Wright told the justices that the case was of “great constitutional significance in which there is understandable and legitimate interest both inside and outside this courtroom”.
“Secondly, in the light of what followed the Divisional Court (High Court) judgment, it should be said with clarity this is a case which the claimants brought perfectly properly and which it is now perfectly proper for this court to decide.”

All the parties involved in the Supreme Court battle over Brexit have formally given their backing to the 11 justices hearing the historic case.



Newly appointed Ukip leader Paul Nuttall has issued a threat towards MPs that may attempt to disrupt the UK’s departure from the European Union: Read full story

WATCH LIVE from the Supreme Court:

Quays News correspondents Aleksandra Todorova and Yoana Nikolova report LIVE on Article 50 and Brexit powers appeal at the Supreme Court.


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