Supreme Court Brexit hearing under way
The eleven justices of the Supreme Court have had their first ever morning sitting as 11.
Outside, demonstrators from pro and anti-EU campaigns had parked buses with demonstrators on board in front of the court building on Parliament Square.
Inside, the President of the Supreme Court, Lord Neuberger, warned that individuals who had brought the case should not be intimidated. Similar warnings were made at the start of the High Court hearing but individuals were intimidated without, as yet, any sanction on others.
The appellant in this case is the Secretary of State for Exiting the EU, David Davis. Strangely, it was very much Mr Davis’ view over the summer that the Government should go ahead and put Article 50 in front of Parliament in September this year, not gang around in various courts trying to fight off such an idea.
I’ve met a few ministers who strongly agree and think a light-footed response would have been to face down critics in Parliament, not antagonise by appearing to duck the encounter. It seems unlikely the Government will lose a vote in the Commons on Article 50 with only the Lib Dems and the SNP ready to vote as a group against. In the Lords, as Lord Howard points out in today’s Telegraph, the position is not so predictable.
But the Government position remains that it will be able to invoke Article 50 by the end of March and even since the High Court decision it has been telling EU countries that it hopes to do so at the end of February or early March.
Lord Neuberger is peppering the Government QC’s arguments with a repeated and clipped “yep”. He doesn’t want to lose control of a tight timetable.
That timetable has been altered in recent weeks. The Supreme Court originally took the view it could publish its judgement in the first week of January before Parliament comes back from recess. On reflection, it’s decided that wouldn’t look good and it will only publish on a day when Parliament is sitting.
The QC is Alex Eadie, the “Treasury devil”, and he is making something of the De Keyser Royal Hotels case, a compensation case sought by a hotel owner years after the Government used prerogative powers to take over a massive hotel in London in the First World War. It was a 500 bed hotel standing where the Lever Brothers building currently stands by Blackfriars Bridge.
The then Government lost that case. An old statute requiring compensation was held to trump the royal prerogative powers because it explicitly spelled out obligations on the Government .
The Government’s argument is that the European Communities Act of 1972 doesn’t spell out any specific obligations on government to overturn EU membership in a specific way (i.e. with a bill).
Proceedings were begun by the Attorney General, Jeremy Wright. (History may record that the Sleaford by-election is currently under way because the former MP, QC Stephen Phillips, was driven to distraction by his anger that Mr Wright was made AG over his own superior claims on the office.)
Mr Wright said if Parliament wanted a legislative trigger before Article 50 was moved it was free to pass a requirement spelling that out. Thanks for the offer of help rescuing the elected politicians, the argument ran, but they can get along just fine without the help of you judges, thanks all the same.
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