Brexit Supreme Court update as at 19.12.2016

And so ends the most important constitutional case in a generation bar the shouting that will follow the judgment. With representatives from all three constituent legal systems of the UK: England and Wales, Scotland and Northern Ireland, as well as a wide ranging host of intervening parties, the Article 50 case has been not only a case of fundamental constitutional importance but also an incredibly wide-ranging one. Submissions were made to the Supreme Court and the unprecedented full bench of the eleven Supreme Court Justices by the following:

On behalf of the Government (the Appellant):

• Jeremy Wright QC (HM Attorney General)
• James Eadie QC
• Lord Keen QC (Advocate General for Scotland)
• John F Larkin QC (Attorney General for Northern Ireland).

On behalf of the Respondents and Interveners:

• Lord Pannick QC (on behalf of Gina Miller)
• Dominic Chambers QC (instructed by Edwin Coe LLP on behalf of Dier Dos Santos)
• David A Scoffield QC and Ronan Lavery QC (on behalf of Applicants Agnew and McCord – in relation to Northern Ireland)
• W James Wolffe QC (The Lord Advocate of Scotland)
• Richard Gordon QC (on behalf of the Welsh Government)
• Helen Mountfield QC (on behalf of Interested Parties – Graham Pigney and others)
• Manjit Gill QC (on behalf of Interested Parties AB, KK, PR and children)
• Patrick Green QC (on behalf of the Interveners George Birnie and others).

It is important to remember that this has not been a case about the merits or shortcomings of the Brexit decision. It is instead about constitutional form, process, and the correct manner in which Article 50 should be invoked to leave the EU. This sentiment was made very clear by Lord Neuberger in his closing of the Supreme Court Hearing.

The question now remains as to what will happen next. Betfair will take bets. It is, however, very difficult to call. We try to decipher from the questions (mainly coming from four judges) what the judge is thinking but this can often be misleading. The questions do suggest however a split decision.

It has now been accepted by both sides that if the Government loses their Supreme Court appeal, a bill will need to be passed in Parliament to allow Theresa May to invoke Article 50. If the appeal is successful Mrs May will be able to start the process of withdrawal without Parliamentary sanction. In the meantime, the eleven Supreme Court Justices have retired to consider all the arguments both oral and written. Their judgment is expected to come early in the New Year.

You will find links to the written cases for all those involved in the Supreme Court Hearing last week as well as transcripts below:

Article 50 Challenge – Summary of the Cases

Who are the claimants in Article 50 Court Case?

Brexit –The Other Claimants’ Case for the Supreme Court

We will of course be monitoring this case and will report on its findings in due course. In the meantime, if you have any questions regarding this topic, please contact David Greene – Senior Partner, or any member of the Edwin Coe Brexit – Implications: Overview team.