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Brexit legal challenge live: Supreme Court hears Theresa May's appeal against MPs voting on Article 50

Supreme Court hears Government's appeal after High Court insisted Theresa May must get parliamentary approval before triggering Article 50

Siobhan Fenton
Monday 05 December 2016 11:21
Attorney General issues warning over Brexit case

The Government’s Brexit plans have been challenged over their apparent lack of detail, by Supreme Court judges considering whether MPs will get to vote on triggering Article 50.

The most senior judges in the country are hearing the case, after the Government appealed the High Court ruling that Theresa May cannot decide to trigger the mechanism and withdraw from the EU, without parliamentary approval.

One of the Justices hearing the Supreme Court appeal, Lord Carnwath, asked chief government lawyer James Eadie QC why more information about the Great Repeal Bill hasn’t been forthcoming. He asked: “Do we have any evidence about that [the bill]? About what it is, what it’s going to do?

“It seems to be of some relevance to ask ourselves, what is Parliament’s role going to be between now and the end of the two years? I think there’s been a statement at the Conservative Party conference. Has there been anything else?“

Mr Eadie responded that he would answer the question and provide more information at a later stage.

The Government has previously been criticised for appearing to lack a coherent and detailed plan for Brexit. Ms May has sought to quell concerns by repeatedly stating that “Brexit means Brexit” but the slogan has been dismissed by critics as exemplifying a soundbite-based approach that is lacking in substance.

The demand for more detail on the Government's Brexit plans came after the most senior Supreme Court judge, Lord Neuberger, opened the latest stage of the legal battle with a warning about the threats and violence that have been directed at some of those involved in the case.

Lord Neuberger also said that the 11 judges, who have come under significant criticism from the right-wing media amid accusations they would try to stand in the way of the referndum result, would make their judgment without any political bias.

Despite the criticism thrown at the judges qustioning their independence, Lord Neuberger, the court's president, said all parties had been asked whether they wished any of the judges to stand down.

He said that all parties to the appeal had stated that they had no objection to any of the justices sitting on the appeal.

In a decision that infuriated Brexiteers, three senior judges ruled last month that Theresa May lacked power to use the royal prerogative to trigger Article 50 of the Lisbon Treaty and start the two-year process of negotiating Brexit without the prior authority of Parliament.

If the appeal is unsuccessful, and any potential further appeal to the European Court of Justice in Luxembourg also fails, the Government's plans for Brexit could be thrown into disarray.

But Mrs May has made it clear she still intends to give an Article 50 notification by the end of next March to start the leave negotiations with 27 other EU countries.

Brexit Secretary David Davis is leading the Government's historic legal action. His team of lawyers, headed by Attorney General Jeremy Wright, will argue in the four-day Supreme Court hearing that the three High Court judges erred over Article 50 and its use was legally justified by the June 23 referendum vote in favour of quitting the EU.

Mr Wright has also courted controversy today, with a warning to judges that they should steer clear of getting involved in political decisions.

A paper submitted to the Supreme Court in advance of today’s case sets out the Government’s argument – that the original High Court ruling implies Parliament would be able to ‘micromanage’ negotiations to leave the European Union.

And it urges the Supreme Court judges not to "stray" into areas of political judgment.

Mr Wright warns: "The Court is being invited by the Lord Advocate and the Counsel General to stray into areas of political judgment rather than legal adjudication. The Court should resist that invitation, particularly where the underlying issue is one of considerable political sensitivity."

"The premise of the 2015 [referendum] act was the continued existence of the Government's prerogative powers to act on the international plane - including, specifically, to give Article 50 notice as the first step to implementing a "leave" vote. That was the clear understanding of all concerned and the basis on which people voted in the referendum."

Lord Thomas, the Lord Chief Justice, gave the ruling blocking the use of Article 50. Two other top judges – Master of the Rolls Sir Terence Etherton and Lord Justice Sales – agreed.

Even though it was emphasised to a packed court in London that they were deciding "a pure question of law" and not expressing any view about the merits of leaving the European Union, they faced fierce criticism from Leave campaigners and an accusation that they were "enemies of the people".

​The High Court ruling was won by Gina Miller, 51, an investment fund manager and philanthropist who was selected to bring the lead case.

She reported that her high-profile role had led to death threats and she had spent £60,000 on security, but she is returning to the battle represented once more by Lord Pannick QC.

Her case is being supported by "concerned citizens" drawn from all walks of life, including London hairdresser Deir Dos Santos, 37, who helped start the legal battle over Brexit but, say his lawyers, has been forced underground after receiving "vile" hate mail.

The Attorney General said: "The country voted to leave the European Union in a referendum provided for by an Act of Parliament.

"The Government is determined to respect the result of the referendum. The Government's case is that it does have legal power to trigger Article 50 on the timetable set out by the Prime Minister. We do not believe another Act of Parliament is necessary."

Counsel General for Wales Mick Antoniw said: "The people of the UK voted to leave the European Union. I respect that decision and we will not work against the referendum result."

He said: "Leaving the EU will lead to significant changes to the devolution settlement in Wales - only the UK Parliament can make those changes, which should be with the agreement of the National Assembly for Wales."

The Welsh Government's legal team "will argue that the judgment of the High Court should be upheld, and that an Act of Parliament is required for the UK Government to give notice under Article 50".

The Great Repeal Bill, which is backed by Brexit Secretary David Davis, would reportedly annul the 1972 European Communities Act (ECA), which gives EU law instant effect in the UK, and give Parliament the power to absorb parts of EU legislation into UK law and scrap elements it does not want to keep.

As it happened- read our live blog of the court proceedings as the unfolded in court.

Please wait a moment for the live blog to load:

The Supreme Court appeal is hearing legal arguments from both the Government and anti-Brexit campaigners, who have taken the case against the Prime Minister’s plans to trigger Article 50.

Last month, the High Court ruled that Ms May’s plans to trigger Article 50 by the end of March cannot proceed without approval from MPs. If parliamentary approval from MPs is enforced, it is unlikely that politicians would vote to block Brexit. However, it is likely to delay Brexit considerably and may alter it’s form by watering down a ‘Hard Brexit’ to less stark policies.

Ms May’s Brexit plans were dealt another blow this week as it emerged she faces a fresh revolt from MPs within her own party over fears she is keeping EU withdrawal plans a “secret”. Up to 40 Tory backbenchers are believed to be ready to vote with Labour to bind the Prime Minister into “publishing the government’s plan for leaving the EU before Article 50 is invoked”.

The Supreme Court appeal is expected to last until Thursday and the judgement will be announced early in the new year.


The case will begin today at 11am, with Government lawyers outlining their arguments that Theresa May can trigger Article 50 without MPs

Siobhan Fenton5 December 2016 10:48

We're expecting the case will last four full days, ending late on Thursday afternoon

Siobhan Fenton5 December 2016 10:50

I'll be here every day for The Independent, with live updates from inside Supreme Court- on Twitter & our live blog…

Siobhan Fenton5 December 2016 10:52

I'll also be tracking the amount of time men spend talking during the Supreme Court appeal, compared to women, to see where the balance lies

Siobhan Fenton5 December 2016 10:59

Of the Supreme Court judges hearing the Brexit legal challenge today:91% are male82% are privately educated82% are Oxbridge graduates

Siobhan Fenton5 December 2016 11:06

Proceedings have begun. Lord Neuberger, President of the Supreme Court, begins by warning that people in the case have been threatened...

Siobhan Fenton5 December 2016 11:08

"Various individuals have received threats of serious violence and unpleasant abuse in emails and other electronic communications"

Siobhan Fenton5 December 2016 11:09

"Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law"

Siobhan Fenton5 December 2016 11:10

Attorney General Jeremy Wright QC now addressing the court. Says he "respectfully" feels High Court judges were "wrong" to rule against govt

Siobhan Fenton5 December 2016 11:11

"Parliament is sovereign. It can limit the powers of the executive, but has always done so sparingly" Jeremy Wright QC

Siobhan Fenton5 December 2016 11:17

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