QC attacks UK’s Brexit powers case

David Pannick QC, representing Ms Miller who is the lead claimant in the ‘article 50’ case, made a confident opening salvo this afternoon after and day and a half of arguments from lawyers for the UK government.

He dismissed the argument that it is a normal part of the UK constitution for ministers to trigger Brexit without parliament using ‘royal prerogative powers’, saying: “The prerogative power does not allow ministers to nullify statutory rights and duties...

“The appellant’s argument if correct far from having a constitutional status would have a lesser status than any act, a lesser status than the Dangerous Dogs Act.

“It would be quite extraordinary if the 1972 act could be set at nought by a minister acting without parliamentary authority.”

The government is appealing the High Court judgement in November, which said that parliament’s sovereignty is supreme and the EU rights created for Britons by the 1972 act, which parliament passed, cannot be reversed without parliament voting again.

Lawyers for the government have sought to argue that it can be implied that in voting for the referendum on EU membership parliament gave up the need for a further vote.

They have also argued that EU membership concerns treaties, which are matters ‘on the international plane’ in which they say ministers can act without consulting parliament.

However Mr Pannick said it makes no sense if parliament’s authority was needed through the 1972 act when EU treaties were made operative in the UK but not to ‘destroy’ its effects by leaving the EU.

He said only “the clearest of statements” by parliament could have shown it meant to give up its right to a say.

Senior lawyers also spoke today as to whether ministers in Westminster may trigger article 50 without consulting the Scottish Parliament or Northern Ireland Assembly. They argued they may do so because devolved powers to those authorities do not relate to international affairs.

Government lawyer James Eadie said today that should they lose Prime Minister Theresa May is likely to submit a very short bill to parliament seeking approval to trigger article 50 – “a one-line act”, though he said “it may be it would lead to all kinds of parliamentary complications and possible additions and amendments.”

The hearings continue tomorrow (Wednesday) and Thursday and a judgement is expected in January.

Also today The Law Society, which represents solicitors, put out a statement supporting the independence of the judiciary.

It said: “The reaction of some parts of the media and by parts of the political world to the earlier decision by the High Court was an affront to the rule of law which underpins our democracy.

“Our independent judiciary is respected the world over - it is the cornerstone of the rule of law. Any attempt to politicise this process which is about who, constitutionally, should be allowed to trigger Article 50, should be shunned.

“Our legal system, evolved over many centuries, is fundamental to ensuring power is not abused.

“The referendum result last summer was a vote to leave the EU. It decided nothing else. The question before the courts is a legal issue. It will determine the correct legal process for us to start our departure from the EU, clarifying whether this can be triggered by parliament or the prime minister.

“No one is above the law, including the prime minister and the cabinet. We should be celebrating the fact that we have an independent and incorruptible judiciary to protect us all and to ensure the rule of law is upheld.”