Tag Archive | "Lord Pannick QC"

How went the battle?


It is quite something when the deliberations of 11 very senior judges is the hottest ticket in town. There should be twelve judges but at the moment there is one unfilled vacancy. Nevertheless this is the first time that that all Supreme Court members have convened to decide a case.

There was standing room only as the battle for Brexit began. At issue is whether the government, through its executive powers, or parliament, can trigger article 50 of the treaty on European Union. The four-day hearing on the divisive constitutional issue was broadcast live. The High Court had ruled that parliament was sovereign in this case and the government was appealing that decision.

Emotions are running high. Ukip has accused those behind the claim of being “arrogant federalists” intent on blocking Brexit, the Daily Mail has branded the high court judges who found against the government in the first round as “enemies of the people”, and individual challengers – such as Gina Miller – have received death threats.

Before legal argument began the president of the Court, Lord Neuberg, stressed the court’s determination to assert its impartiality in the proceedings. He went on to say “various individuals have received threats of serious violence and unpleasant abuse on emails.” He warned that there are “legal powers designed to ensure that access to the courts is available to everyone.”

Labour’s shadow attorney general, Shami Chakrabarti, told BBC Radio 4’s Today programme: “the political aspect of the case had been hyped in parts of the media.” She said: “This is about process. It is not about outcomes.” She said it was unfair for newspapers to delve into the personal lives or supposed opinions of the judges.

Opening the government’s submission, the attorney general, Jeremy Wright QC and MP, said that royal prerogative powers were an essential part of the UK’s unwritten constitution and the high court had been wrong to rule last month that article 50 could only be triggered following a vote in Parliament.

Wright was followed by James Eadie, known as the Treasury Devil, but he ran into a barrage of queries from the justices in the court challenging the source of the royal prerogative.

Lord Pannick, QC, opening the argument on behalf of the lead claimant of the case, Gina Miller, dismissed as “inherently implausible” the government’s assertion that it was entitled to deliver notice of the UK’s intention to leave the EU under article 50. He described the referendum as “plainly an event of considerable political significance”, but was not a matter for the court because “it was irrelevant to the legal issue of whether ministers enjoy prerogative powers to set aside the 1972 Act.”

‘Guardian’ sketch writer John Crace had fun with the performing personnel. Of Lord Pannick he said: “Seldom has a man been less well named…a Pannick attack is a thing of zen like beauty.” Lord Keen, for the Scots, was described as being “breathless in a way that only a tortoise could ever know. Glaciers move more quickly than Lord Keen.” John Larkin, attorney general for Northern Ireland “dropped his bundles and lost his place to deliver one of the more hapless performances ever witnessed by the supreme court. Still his job was done. By making himself appear so useless, he might just have made Eadie and Keen look a little better.”

Judgement is expected mid- January.

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Brexit in the High Court


Last Tuesday the High Court concluded its hearing of the legal challenge over Brexit. Opponents are fighting to stop Theresa May triggering Article 50 of the Lisbon Treaty to leave the European Union without a vote from MPs in Westminster. Government lawyers argued before three judges that the Prime Minister is legally entitled to use the royal prerogative to commence Britain’s exit from the EU.

A number of campaigners have mounted legal challenges against the Prime Minister’s strategy for Brexit in what has been described as one of the most important constitutional cases in generations.

At stake is the question of whether the government is within its rights to begin the process of leaving the EU by triggering Article 50 of the Lisbon Treaty without the consent and authorisation of Parliament. It was established on both sides that the issue was justiciable, falling within the auspices of the courts to decide upon.

Lord Pannick QC represented the lead challenger, Gina Miller, in the claim. He argued that the inevitable consequence of triggering Article 50 is that statutory rights enjoyed by some UK and EU citizens will be taken away. That can only be done by Parliament, and not by the executive using the crown prerogative.

He contended that there was a direct causal link between the irrevocable triggering of Article 50 and the ultimate stripping away of statutory rights, such as that of UK citizens to stand and vote in European elections, to petition the European Court of Justice and to seek the European Commission’s intervention to uphold competition law.

The Government case, led by attorney general Jeremy Wright, argued that the mandate to trigger Article 50 is clear from the referendum. As Parliament did not take the opportunity to prevent a restriction on the use of royal prerogative for the triggering of Article 50, the executive has the power to trigger as it pleases. He said the “notification – once given – will not be withdrawn. It is our case that Parliament’s consent is not required.”

He told the court that the power to activate Article 50 was a “classic example of the proper and well established use of royal prerogative” with regard to treaty making and breaking.

Sky’s Faisal Islam wrote that “The concerning news for the Government is that the three High Court judges appeared far more sceptical about its case than many had expected. The Lord Chief Justice said twice that their argument ‘baffled’ him. It is entirely plausible that the Government will lose this case, which might come as a shock to Westminster.”

It depends on the three judges. The 582-page transcript of the High Court hearing is a formidable hurdle to a quick ruling. “We shall take time to consider the matter and will give our judgements as quickly as possible,” said Lord Chief Justice John Thomas, Britain’s most senior judge, who has been hearing the case with two other leading justices.

Whichever side loses will almost certainly appeal to the Supreme Court, the UK’s highest judicial body, which will give a final verdict in December.

It is not impossible that the Supreme Court could refer the case to the European Court of Justice. Now that would be ironic.

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Who is Mrs Miller?


As the lead claimant in a historic legal action against the prime minister, Gina Miller has been thrust into the national limelight, but the investment manager is no stranger to taking on powerful establishments.

She was born in Guyana but grew up in Britain. A serial entrepreneur, she is also a philanthropist. In her own words her focus is “supporting small heroic charities that are at the coal face of negative society trends”. The True and Fair Foundation also gives advice to other “time-poor philanthropists who wish to give responsibly.”

According to the ‘Guardian’, the 51-year-old co-founded the firm SCM Private in 2014, but she also set up the True and Fair Campaign in 2012 with her hedge-fund manager husband which called for more transparency, and an end to hidden fund charges and miss selling in the City of London’s fund management industry.

Now represented by Mishcon de Reya, she is leading the judicial review of the government’s triggering of article 50, which will start the negotiations about the UK’s exit from Europe. She is reported as telling ‘Business Insider’: “I believe these things should be debated and looked at in parliament. It would be the first time that we would have a proper, serious, grown-up debate about all the factors that will influence us leaving the EU. There should be a debate about the consequences for different sectors. MPs should listen to their constituents. Then, if MPs vote in favour of invoking article 50, primary legislation [should be passed].”

Miller is joined by other applicants including support from the crowdfund People’s Challenge.

Yesterday the High Court began a hearing of the legal challenge over Brexit in what has been described as the most important constitutional case in generations. Opponents are fighting to stop Theresa May triggering Article 50 of the Lisbon Treaty to leave the European Union without a vote from MPs in Westminster. Government lawyers will argue before three judges that the Prime Minister is legally entitled to use the royal prerogative to commence Britain’s exit from the EU.

Three of the most senior judges – the lord chief justice, Lord Thomas of Cwmgiedd, the master of the rolls, Sir Terence Etherton, and Lord Justice Sales – are hearing the challenge. The attorney general, Jeremy Wright QC, will lead the government’s case and Lord Pannick QC, represents the lead challenger in the claim.

In a preliminary, but very significant, skirmish the government has been forced by a senior judge to reveal secret legal arguments for refusing to let parliament decide when and how the UK should withdraw from the European Union. The government had refused to allow its legal opponents to reveal before the case its explanation of why it ought to be able to use royal prerogative powers to trigger article 50. But in an order handed down by Mr Justice Cranston last Tuesday, he told both parties: “Against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under [court] rules.”

In the released documents, lawyers for the government argue that it is “constitutionally impermissible” for parliament to be given the authority rather than the prime minister and dismiss any notion that the devolved nations – Scotland, Northern Ireland and Wales – will have any say in the process.

And, in a direct challenge to Downing Street’s authority over Brexit, the House of Lords constitution committee has published a report declaring that it would be “constitutionally inappropriate” for the prime minister to act on an advisory referendum without referring back to parliament.

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