The UK’s highest court continues to hear arguments as to whether parliament or the government has the authority to trigger Brexit
Now, it’s Lord Keen QC, the advocate general for Scotland, who is dealing with devolution issues.
In short: Lord Keen's job is to argue there are limits to devolution and, therefore, ScotParly etc can't veto #brexit
Here's the government's submissions on why devolution can't stop the triggering of Article 50 and #brexithttps://t.co/HFNSVty52g
Core argument from Lord Keen: Laws behind devolution transferred no responsibility for UK's foreign relations to Scotland, Wales & NI
Eadie begins his closing submissions.
Parliament has limited some prerogative powers “expressly and in detail and it has not touched the power to give article 50 notice”.
Onto parliamentary sovereignty, which Eadie says the government’s case fully respects.
Parliament has specified, when, how and with what it will be involved, the government’s counsel says.
Parliament is already deeply involved and unsurprisingly involved in the whole issue of withdrawal.
Parliament does not seem to want the obligation the divisional (high) court has thrust upon it.
Eadie claims that the other side’s case involves “tight-rope walking”, ignoring the legislation as they say the prerogative never existed to change the law.
It also involves saying “stop the clock in 1972” and ignore the dualist nature of the act and subsequent legislation, including “the elephant in the room”, the 2015 EU Referendum Act..
SC has been down the rabbit hole of what happens *after* #Brexit. What will UK do about huge swathes of EU law? What replaces it? How?
Whatever the outcome of the article 50 case, it will have established the supreme court’s enhanced position as an interpreter of the UK’s creaking, unwritten constitution.
The supreme court has been edging towards that role - of becoming a constitutional court - for some time.
The actual decision to join the EU (or EEC as it was in 1972) was taken by the government but it was put to parliament for approval, says Lord Mance.
They were political decisions, says Eadie. You have to look at the 2015 act. This was after “real controversy”, a general election, an act of primary legislation.
SC: What will be effect on competition,safety standards, compensation for air delay etc, when notice expires? Do they simply lapse?
A: Yes.
And now the Court is exploring the sheer complexity of what Brexit will actually mean when disentangling 40+ years of legislation.
Back on to the scope of the royal prerogative now.
The prerogative with which we are dealing has always been recognised as a general power - to conduct foreign affairs - with specific elements, which are all the things required to conduct foreign affairs, e.g. ratification of treaties, withdrawal, Eadie says.
If the high court’s judgment against the government stands, James Eadie QC alleges, then a new restriction on the government’s executive freedom in foreign affairs will have been created.
It would introduce a much more stringent stream if control [by parliament] in a newly discovered principle. You would need primary legislation [to sign international treaties or other overseas developments.
The Supreme Court is discussing the fact that the act which provided for the vote on the alternative act referendum was legally binding but the EU Referendum Act was not.
The 2015 EU Referendum Act is “studiously silent” on what should happen after the vote. Should it then be left to parliament to decide what should happen, Lord Neuberger asks?
Lord Reed's questions most important today. Asks if 2015 referendum had legal or purely political significance. Goes to heart of govt's case
Again, Eadie says the 1972 European Communities Act makes no provision for withdrawal.
On entry or before we signed up to the treaty of accession there were parliamentary motions but they were not legally binding, they were simply parliament’s choice about how to give its permission and how to get involved, he continues.
The 11 justices are continuing with their customary interjections, teasing out legal meaning with sometimes abrasive questions, observations and interruptions.
Conventional wisdom is that if you follow the thrust of the judges’ queries you may be able to discern the drift of their sympathies and anticipate the ultimate outcome of the judgment.
There is a discussion over the great repeal bill, the legislation to end the authority of EU law by converting all its provisions in British law on the day of exit from the bloc.
Eadie agrees with Lord Sumption when the justice asks if the great repeal bill has no legal significance to our decision.
I think you’ve given two diametrically opposed answers to the same question in the last five minutes.
I will try not to give too many inconsistent answers in the same 5 mins.
Eadie begins:
Lords and ladies I’ve still got quite a bit to get through, I’m afraid.
James Eadie QC, for the government, aka the “Treasury Devil” is back on his feet. He’s telling the justices about some notes that were waiting for them when they came into court this morning. The notes are intended to provide some answers to questions put to Eadie by the justices yesterday.
The court is full, just waiting for the justices now.
If you’re really keen, you can find the transcript of yesterday’s proceedings here.
It is fair to say that few if any legal cases have generated as much interest in recent years as the supreme court hearing on article 50, especially when it comes to constitutional law.
People were queuing early yesterday morning to get into the court and both Sky and BBC streamed most of the day’s proceedings live.
“I don’t propose to go on and on,” [James] Eadie began, before going on to do just that. The courtroom began to feel stifling and one or two people began to get very heavy-lidded. Sensing he was losing his audience before he had started, Eadie made a bad gag, at which a few of his team laughed sycophantically. Lady Hale was unmoved, observing that some of his bundles were not in the right order.
That intervention was the cue for the judges to mount polite guerrilla warfare on Eadie for the rest of the day. They knew he was too bright to be this vague, so the only possible reason he could have for deliberately missing the point was to steer them away from the fact that he wasn’t entirely sure what point it was he was trying to make. This kind of thing doesn’t normally bother lawyers of Eadie’s calibre, but it’s not every day you’re up against the 11 best legal minds in the country.
The justices pinged in questions as at an Oxbridge tutorial. Lord Carnwath drawled forth, ultra pukka.
Neuberger drilled his left ear for any wax that might see him through to the luncheon adjournment.
Good morning. Welcome to our continued coverage of the government’s appeal against the decision of the high court that only parliament has the authority to trigger article 50, which dictates how countries leave the European Union. The government is arguing that ministers have the authority to trigger the said article using executive powers conferred by the royal prerogative.
By now I expect you’re all experts on the royal prerogative, so today’s proceedings should be easy to follow!
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