Brexit in the Supreme Court: Parliament or The Executive
Today was a further day in the Supreme Court hearing of the Government’s appeal from the decision of the Divisional Court holding that Parliamentary authority was required to invoke Article 50 to commence withdrawal from the EU.
As the case continues, it is becoming increasingly clear that a very great deal of public money is being spent on an appeal which, perhaps, ought never to have been brought. One wonders what legal advice was given to the Government.
Things might have been very different if Dominic Grieve had not been replaced in July 2014 by Jeremy Hunt. Hunt practised at the criminal bar in the Midlands and only took silk upon his appointment to the Office of Attorney-General. To put it simply, he is a light-weight and that has been painfully clear, both in the Divisional Court and now, before the Supreme Court. That is why the heavy lifting in relation to the Government’s appeal has been done by James Eadie QC, who is First Treasury Counsel. See the observation of Sir Henry Brooke on James Eadie in this post: “The Treasury Devil”:-
“Since his appointment as First Treasury Counsel he has borne the formidable burden of defending Government legislation in the finest possible way at a time when it has attracted considerable odium among those who care for the future of the rule of law.”
Today in the Supreme Court hearing we have heard Lord Pannick QC concluding the 1st Respondent’s response to the Government’s appeal. Interestingly, both the Guardian and the Telegraph have similar sketch writer headlines.
The Guardian has this sketch: “Supreme court justices tamed in face of a Pannick attack – Gina Miller’s barrister gives Treasury Devil and other QCs a lesson in taking the floor and keeping it at an article 50 hearing”. Certainly, Lord Pannick is the pre-eminent silk for this kind of case – and it shows. But The Supreme Court was certainly not tamed.
The Telegraph has this: “Day two at the Supreme Court: the Government suffers a Pannick attack”. It is certainly true that Lord Pannick made a very compelling case for dismissing the Government appeal.
This morning we also heard from Dominic Chambers QC on behalf of the 2nd Respondent. However, while the Respondents appear to be doing rather better than the Government has done so far, and while the Court will spend the rest of the day and most of tomorrow hearing from the advocates for other interested parties including those appearing for the Scottish and Welsh government, from 14.30 to 16.00 tomorrow James Eadie will make submissions in response on behalf of the Government and that will conclude the oral arguments.
The Supreme Court Justices will then retire to consider the papers and the arguments of the parties both in private and in conferences between the Justices and deliver its decision in the New Year.
Parliament or Government’s Referendum Omission
Writing in the Telegraph, Philip Johnson has this “Supreme Court day three, lunchtime briefing: it was Parliament’s glaring omission which led us to this mess“.
While, in one sense, the mess is an omission by Parliament, but in reality it is a mess created by Ministers and by those whose function is to advise Ministers.
In the first place it is the result of the poor drafting of the Referendum Act by the Cameron Government and its advisers. Of course, poor Dave also thought he could win the Referendum and on that matter he was also wrong and has paid the price.
Likewise, Mrs May, as a former Home Secretary with vast experience of the limitations on the use of prerogative powers, ought to have known the trap she was building for herself. Perhaps she did not focus on the difficulty , in which case her advisers should have brought this to her attention.
No doubt, the the Attorney General who superintends the work of the Government Legal Service will be able to explain just why a very basic limitation on the use of prerogative powers was apparently not considered in the context of Article 50.
Brexit Motions in the Commons
Meanwhile MP’s voted on motions related to Brexit in the Commons. See this BBC Report: “MPs back government’s Brexit timetable“.
“MPs backed Labour’s motion, saying the government should publish a plan and it was “Parliament’s responsibility to properly scrutinise the government” over Brexit, by 448 votes to 75 – a margin of 373.
This followed another vote over the government’s amendment to the motion, which added the proviso that its timetable for triggering Article 50 of the Lisbon Treaty, getting formal talks with the EU under way, should be respected. MPs backed this by 461 votes to 89 – a margin of 372.
It might be said that this was something of a score draw. Neither vote is binding on Parliament.
Meanwhile in Brussels the Brexit Negotiator Spoke
See this in the Financial Times: “Brussels on Brexit: What Michel Barnier said and what he meant – The EU’s lead negotiator gives a glimpse of how the EU views the process“.
After reading this, I feel more and more depressed. This Brexit craze is far too lethal to be left in the sole control of the Conservative Ship of Fools.