Brexit ‘bad losers’ test constitutional law and judges’ patience

Keywords Courts / Government

By the time the third lawyer stood to make her case against Prime Minister Theresa May’s plan to trigger Brexit, members of three-judge panel were glancing at the clock.

“We’ve got to stick to the time,” said Judge John Thomas, looking down on the attorneys, journalists and curious citizens massed in Court 4 of the Royal Courts of Justice in London. “Are you nearly finished?” The attorney was, but there were five more trial lawyers in white wigs waiting to take their turn. This was, after all, one of the most important constitutional cases in British history.

A finance entrepreneur, a hairdresser, and other claimants backed by a small army of attorneys, are suing the U.K. government in an attempt to force a vote in Parliament before triggering Brexit. “Remain” campaigners hope the case can delay or even derail the process, while the government denies it has to consult lawmakers before starting the exit. The trial ended Tuesday after three days of hearings, with Judge Thomas saying the court would issue its ruling as soon as possible.

If anything, the three judges seemed equally underwhelmed by both sides as they sat in front of a carved wooden crest in one of the building’s oldest courtrooms. Later, after urging the claimants to hurry up, Judge Thomas, the Lord Chief Justice of England and Wales, told a government lawyer he was “slightly baffled” by his arguments.


While the judges didn’t express strong opinions, one lawyer who sat through the hearings said the court might be “sympathetic” to the arguments calling for greater Parliamentary scrutiny.

“The court does see a proper question of law at the heart of the dispute and does want to resolve the question,” said Jolyon Maugham, a lawyer at London’s Devereux Chambers who raised 10,000 pounds ($12,300) through crowd-raising to pay for legal advice on who could trigger Article 50 of the Lisbon Treaty and who has sat through the hearing.

Rarely have British judges been asked to resolve such a politically charged question, or one with such dramatic implications for the country’s future. Once Article 50 is invoked, a two-year countdown begins and there is no going back, the government’s top legal adviser Jeremy Wright told the court Monday.

If the lawsuit succeeds, May would have to face down pro-EU lawmakers in her own party, as well as a majority of the opposition Labour Party and all the Scottish National Party. Any vote on triggering Article 50 would be unlikely to proceed smoothly. Government attorney James Eadie said Tuesday that any treaty from negotiations with EU members will “very likely” go to both houses of Parliament for ratification.

High stakes
The high stakes contributed to a fraught atmosphere inside and outside the courtroom. Before the hearings began on Monday, campaigners waved blue European flags in support of the claimants outside the Royal Courts. They were confronted by a man dressed all in black who approached to within a few feet and unfurled his counter-protest. The banner said: “BAD LOSERS ->.”

Inside, the judges were keen to keep things moving. Lawyer Patrick Green rose to his feet and said that he represents, among others, a Canadian woman who lives in France and can only remain there because of her husband’s British citizenship. Her rights are under threat from Brexit, he said, declining to name her because of some ”unhelpful correspondence” from angry supporters of the “Leave” campaign.

Sovereignty questions

"Is that a matter relevant to the question of parliamentary sovereignty?" Judge Terence Etherton asked politely. Despite the damp stains on the walls and smell of dusty old books, the courtroom was a suitably theatrical setting to test Britain’s centuries-old constitution. The public gallery was full and security guards kept watch outside to stop overcrowding.

"I think the claimants’ arguments were the more powerful as they rest on this broad plank that says the executive can’t remove fundamental rights that have been expressly created by Parliament,”said Schona Jolly, a human rights attorney who watched the hearings. “That’s an attractive argument.”

May, appointed following the political upheaval that led to the resignation of David Cameron, faces prolonged negotiations to maintain trading access to the European bloc even as public protests from both camps call for either a swift Brexit or another vote.

Representing the government, Wright, the U.K. attorney general, told the court that the question the litigants want to ask Parliament has already been answered by the British people, who voted by a clear majority to leave the EU.

“This is not, we submit, a narrow legal challenge directed to the technical procedural matter of notification,” he said. “In reality, it seeks to invalidate the decision already taken.”

Parliamentary consent

The claimants, including entrepreneur Gina Miller and hairdresser Deir Dos Santos, say that the government is flouting a three-century old statute, enacted after the overthrow of King James II, saying that laws should not be discarded without consent from Parliament.

Complicating the judges’ decision is the fact that, unlike the U.S., Britain has a largely unwritten constitution, based partly on tradition and precedent. That helps the government’s case because it gives flexibility, Eadie told the court.

“We are dealing with exceptional and probably unique circumstances,” he said. “There is no constitutional format.”

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