Interveners join Brexit challenge

The Supreme Court has allowed five groups to intervene when its 11 justices hear the government’s Brexit appeal.

Applications were granted to the Scottish and Welsh governments, a group of ex-patriots, the Independent Workers Union of Great Britain and Lawyers for Britain – a group of lawyers led by Martin Howe QC, of London’s 8 New Square Chambers.

Lawyers for the pro-single market think tank, British Influence, may mount a separate challenge over whether the UK stays inside the single market after Brexit.

Meanwhile, the Deputy President of the Supreme Court, Lady Hale, prompted debate following comments in a speech to lawyers in Kuala Lumpar. She said that the referendum result was not legally binding – a fact on which all parties to the case agree.

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Westminster Watch

In this ‘post-truth’ age, Mark Hatcher looks back at the seismic events of 2016 and what will dominate Westminster politics in 2017 – is change in the air? 

2016 will be remembered for two seismic events which have rocked the political classes on both sides of the Atlantic: the decision of the UK to withdraw from the EU and the election of Donald Trump as President of the United States. 

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Brexit’s Gordian Knot

Deciding how we Brexit is not within the government's gift, argues Dominic Grieve QC MP. No Parliament worth its name can abandon input into the biggest and most complex constitutional change in modern times. Discussion is vital

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Brave new world

How will losing passporting rights affect the UK’s financial services sector? Saima Hanif argues that the equivalence regime is not a satisfactory alternative

As the President of the European Council Donald Tusk remarked, in response to comments from Boris Johnson that the UK could have its cake and eat it by keeping single market access without accepting free movement of persons: ‘There will be no cakes on the table, for anyone. There will be only salt and vinegar…’

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Brexit in court

Professor Michael Zander QC assesses the High Court decision and predicts the government is likely to lose its appeal to the Supreme Court

Asked on the day for a first assessment of the decision I wrote: ‘The Divisional Court’s unanimous decision is very clear and very strong. 

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Supreme Court Brexit showdown

All 11 Supreme Court justices will hear the government’s appeal against the High Court’s Art 50 ruling.

The judgment that the government requires parliamentary approval before triggering Art 50, the formal mechanism to leave the EU, prompted outrage among some sections of the press and politicians.

The judges – the Lord Chief Justice, Lord Thomas of Cwmgiedd, the Master of the Rolls, Sir Terence Etherton, and Lord Justice Sales – were accused by some of attempting to subvert the result of the July referendum and branded ‘Enemies of the People’ (The Daily Mail).

In the wake of the media storm and personal abuse of members of the court, the Lord Chancellor, Liz Truss, came in for strong criticism from the legal profession for failing to speak up to defend the independence of the judiciary and the rule of the law, as she is statutorily obliged to do.

A Bar Council resolution called on her to condemn the ‘serious and unjustified attacks’ on the judiciary.

On her behalf, the Ministry of Justice issued a statement saying: ‘The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality.’

Former Lord Chief Justice, Lord Judge told the BBC’s Newsnight programme the statement was ‘too little and not a lot’. Labour’s former Lord Chancellor, Lord Falconer called on Truss to resign and Justice Committee chair, Bob Neill condemned the attacks on the judiciary.

Sixteen Silks from One Crown Office Row – including former Bar leaders Guy Mansfield QC and Robert Seabrook QC – wrote an open letter to Truss saying they were ‘dismayed’ by her ‘inadequate defence’ of the judges. Other sets may do likewise.

In a speech at the Law Society the Attorney General, Jeremy Wright QC, who represented the government, backed judicial independence and press freedom.

Contrary to reports that Number 10 had briefed against him following the judgment, he insisted he had the Prime Minister’s support and that he would represent the government in the Supreme Court.

He dismissed suggestions that the government had been advised that it will lose its appeal, but said if it did, the government would ‘respect’ the judgment. ‘The rule of law matters more than however big and important an issue may be,’ he said.

The appeal has been listed for four days from 5-8 December. The judgment will be reserved, most likely until the new year.

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Westminster Watch

Rule of law and judicial independence are critical to the maintenance of a healthy body politic as we face some of the greatest challenges of our time, writes Mark Hatcher

Earlier this year Donald Trump claimed that US District Judge Gonzalo Curiel of San Diego was unfit to hear two lawsuits against the now-defunct Trump University because ‘he’s a Mexican’. 

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Great Repeal Bill and Brexit challenge ahead

The Prime Minister announced that a Great Reform Bill will be included in next year’s Queen’s Speech to repeal the European Communities Act 1972.

On the first day of the Conservative party conference in Birmingham, Theresa May said the UK will begin the formal Brexit negotiation process by the end of March 2017, which could mean that the UK will leave the EU by summer 2019.

The former Attorney General, Dominic Grieve QC, described the proposed Bill as ‘little more than a bit of froth’ that would have little practical effect. He told The Brief that it would not be legally viable for the UK to bring into force a repeal of the 1972 legislation until after it has formally left the EU.

Meanwhile, the High Court ordered that the government disclose its argument as to why it is relying on the use of the prerogative powers to trigger Art 50, the mechanism by which the UK will formally leave the European Union.

The ruling was hailed as a preliminary victory for the so-called People’s Challenge, which is arguing that Parliament must vote on the issue.

The government argues that it is ‘constitutionally impermissible’ for Parliament to be given the authority to make the decision rather than the Prime Minister

The Attorney General, Jeremy Wright QC, led the government’s case, which took place as Counsel went to press, along with James Eadie QC and Jason Coppel QC.

Meanwhile, the Bar Chairman, Chantal-Aimée Doerries QC,backed a call from the Lord Chancellor, Liz Truss, at the party conference to boost diversity in the legal profession and judiciary.

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Unclogging the court

Brexit provides new context for the UK’s role in the Council of Bar and Law Societies of Europe – particularly its scrutiny of the European Court of Human Rights’ excessive caseload, as Piers Gardner explains

Recognised as the voice of the European legal profession, the Council of Bar and Law Societies of Europe (CCBE) represents, through its members, more than one million European lawyers. 

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Westminster Watch

Mark Hatcher on the Great Repeal Bill, legal black holes and bonfires of red tape that will dominate Whitehall and Westminster for the foreseeable future

The Foreign Office document published at the beginning of the year which outlined the process for withdrawing from the European Union (Cm 9216) was unequivocal.

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