Lawyers continue to make the case as to why only parliament and not government has the authority to trigger article 50 to leave the European Union
There exists no body or bodies that can declare void legislation enacted by parliament without the authorisation of parliament, Chambers continues.
The doctrine of parliamentary sovereignty is not a general principle, it is the fundamental constitutional principle upon which our legal system stands.
Now on his feet is Dominic Chambers QC, representing Deir Tozetti Dos Santos, a hairdresser who holds UK and European citizenship.
He begins on parliamentary sovereignty. He says under the English constitution no personal body or bodies can “make rules which overrule or derogate from an act or parliament”.
Here's a link to Dominic Chambers' arguments that are being presented to the Supreme Court https://t.co/8Npx9kEY2R
Pannick says tonight’s parliamentary motion, which asks MPs to “respect the wishes of the United Kingdom” by agreeing to the government’s timetable for Brexit, effectively agreeing that article 50 should be triggered before the end of May, is not sufficient to give the government authority.
A motion alone does not give authority and cannot override legislation.
Pannick: Eadie's eloquence should not be allowed to obscure the basic constitutional principles his arguments seek to violate.
Sits down.
Pannick continues:
I say the 2015 act is an act of political significance. It is entirely neutral on the matter before the court.
A little bit of forethought by MPs and ministers when passing the 2015 Referendum Act, and this case would not have been possible.
These are intense exchanges, probably the toughest grilling Pannick has faced so far in this case.
Pannick says it cannot be said that the 2015 European Union Referendum Act act clearly removes the inhibition on the ability of the executive to nullify statutory rights.
For the court to infer matters that are not in the act when they are matters of constitutional importance would be wrong ...
There is no language in the 2015 act which comes close to supporting the contention which is being put forward by the appellant.
Lord Pannick running into stronger judicial resistance when he comes to consider the 2015 Referendum legislation.
“It would be a bit surprising if the referendum act and the referendum had no effect in law,” Lord Neuberger suggests.
Some breaking news related to the case.
A 55-year-old man has been arrested on suspicion of racially aggravated malicious communications over threats made online to Gina Miller, 51, the businesswoman behind the Brexit legal challenge.
Pannick moves onto the post 1972 legislation and “the limitation placed on the crown’s power to act on the international plain”.
There was and is no prerogative power to take action on the international plain to take action to nullify the effect of the 1972 act, he argues.
The act is simply inconsistent with any prerogative power to set it aside.
Lord Sumption's wonderful Team GB Olympic tie blatantly displays the Union Flag. What will @MailOnline make of it!! #SupremeCourt#Brexitpic.twitter.com/zYCrCP6VnH
There is a moment of levity as the justices and Pannick share a joke about the pronunciation of the De Keyser case, one of the authorities discussed by both sides.
Pannick has been pronouncing it De Kay-ser and the court’s deputy president Lady Hale asks if she has been pronouncing it wrong her whole life. She has been saying De Kee-ser.
You say De Kee-ser, I say De Kay-ser.
Pannick says:
It’s no answer for the appellant to say of course these rights lapse when we leave the club.
It is impossible to understand as a matter of law how the secretary of state can claim a prerogative power to notify.
“That way madness can be said to lie,” Lord Neuberger, president of the supreme court, remarks when faced with the prospect of analysing everything ever said by ministers in parliament about EU legislation.
The court may already have a mountain of 33,840 pages of evidence and submissions to read. Clearly there are some limits.
#SupremeCourt President Neuberger: 'One doesn't want to look at everything said on the floor of the House of Commons; that way madness lies'
Pannick justifying referring to David Lidington in 2015 EU referendum bill debate.. some sympathy from Justices pic.twitter.com/ytb9ClNRXA
Pannick resumes on the fourth point of his seven arguments against the government’s cases, which is that he 1972 European Communities Act contains no clear statement that executive does have a prerogative power to nullify a statutory scheme.
He says that the ECA was created so that it would have precedence over subsequent legislation, therefore:
Parliament is most unlikely to have intended that the scheme it was creating could be set aside by a minister.
Following Lord Pannick’s persuasive opening on behalf of Gina Miller on Tuesday, Betfair has increased the likelihood of the supreme court rejecting the government’s appeal. The probability of the 11 justices finding for Miller and upholding parliamentary sovereignty has risen from 75% to 83% according to the online betting market’s assessment.
Karen Doyle, an organiser for the Movement for Justice, has been outside the supreme court for every day of the hearing with a placard opposing Brexit and racism. She explained:
We are here to stop Brexit. We are going beyond what the judges are doing. We support by delay or frustration which subjects government plans to greater scrutiny.
We have had some intimidation from an offshoot of the English Defence League. People coming up close putting cameras in our face and shouting ‘You’re the fascists’.
There was plenty of praise for Pannick’s performance from other lawyers as well.
Never watched Pannick in action before. Boy, is he good.
The thing about Lord Pannick is that he could also argue the other side's case and do that brilliantly. Watch and learn. #LordPannick
For newcomers watching appellate advocacy for the first time it is staggeringly difficult to speak as simply as Lord Pannick QC.
The appearance was of the government case being carefully and eloquently dismantled. One should not be too dazzled by the performance: the supreme court justices do not lack the intellectual self-confidence to disagree with Lord Pannick. Indeed, one of their number — Lord Sumption — was as celebrated and powerful a barrister as Lord Pannick. Although heartening for those wanting the government to lose the appeal to watch, the advocacy skills of Lord Pannick are likely to only make any marginal difference, if any.
There was easy meat for headline and sketch writers yesterday, with respect to the lawyer opening the case against the government - it won’t surprise you that “Pannick attack” was used more than once.
Sketch writers are a notoriously cynical lot but there was also recognition of an impressive performance by Pannick.
Lord Pannick is renowned as a superstar of the courtroom. You might not necessarily guess it, to look at him. Outwardly, he seems harmless, with his genial rubbery features, his brow furrowed in gentle concern, and his voice rising and failing in a kind of Sunday school sing-song. His manner is unhurried, unassuming, unaggressive.
Yet he chomped through the Government’s case like a shark. He set out, with effortless clarity, seven reasons why the Government couldn’t just invoke Article 50 whenever it felt like it.
The justices seemed to like this smarmster before them well enough. Here was a complete and utter lawyer saying that legal punctiliousness was more important than political despatch. Well, how very congenial for them all.
Here was a member of the legal trade union speaking, in his furtively buttery manner, of the higher calling of legal logic, the primacy of precedent, the pre-eminence of extended legislative process over the smack of firm government.
Good morning. It’s day three of the supreme court hearing, which will decide whether the government or parliament has the authority to trigger article 50, which will begin the process of the UK leaving the European Union.
This morning David Pannick QC will continue making the case for Gina Miller, who was the lead claimant in the successful high court challenge, which has been appealed by the government.
Continue reading...