Brexit Means Canadian Lobsters as Court Weighs Verdict

Updated on
  • U.K. Supreme Court wraps up four days of Brexit hearings
  • Ruling, due in January, hinges on case law, not politics

Scottish, Welsh Lawyers Ramp Up Pressure in Brexit Case

By the time the Brexit hearings at the U.K. Supreme Court finished on Thursday, the judges had listened to four days of debate on De Keyser, a hotel occupied by soldiers during World War I, and about radio stations on boats, dangerous dog laws and a lobster factory off the coast of Newfoundland.

One thing they didn’t hear much about much was Brexit. The word was mentioned a total of three times in the first three days. De Keyser, one of the decades-old examples of case law cited by the legal teams, came up 56 times.

The lawsuit at the U.K.’s top court -- filed by a diverse group including a finance entrepreneur, a hairdresser, Scottish politicians and a Canadian woman who lives in France -- is an attempt to force the government to pass a new law before officially starting Britain’s exit from the European Union. Prime Minister Theresa May’s government, which lost in a lower court last month, wants to avoid that as it tries to start the process by the end of March. A ruling is expected in January.

While the references to ancient legal principles may have confused non-lawyers, remarks made by the 11 justices were easier to interpret. On occasions they were critical of both sides’ arguments.

“The justices gave the lead counsel for the government a particularly hard time,” said Robert Hazell, a professor of government and the constitution at University College London. “I think the claimants had a better ride.”

Royal Prerogative

As well as being the biggest case in the seven-year history of the Supreme Court, the lawsuit could have dramatic implications for how and when the country severs its European ties. Legislation would require a debate and amendments in both houses of Parliament, a lengthy process that would make premier’s deadline difficult.

The government’s case got off to a difficult start. It argued that the prime minister’s executive privilege -- known as the royal prerogative -- gives May the authority to make and unmake treaties without parliamentary approval.

The judges seemed skeptical. One focused on the fact that it was a treaty, voted on by lawmakers, that allowed the U.K. to join the EU.

"If our accession was the result of a joint effort, should our departure not equally be so?" Judge Nicholas Wilson asked government lawyer James Eadie.

Tight Security

Security was tight throughout the four days, with police barriers surrounding the court building in London, and lead challenger Gina Miller arriving surrounded by bodyguards. On Wednesday, police arrested a 55-year-old man in Swindon, western England, for allegedly making online threats against her.

Meanwhile, on the other side of Parliament Square, the House of Commons voted overwhelmingly to approve a motion in favor of May’s plan to give notice. Given that Miller and the other challengers’ case is all about involving Parliament, some judges questioned the need for the courts to intervene.

"The average person in the street will think it seems odd if one says you have to go back to Parliament and have an act of Parliament passed to show what its will is when you’ve already been to Parliament and had a motion that’s been approved," said Judge David Neuberger, the court’s president.

“We do not believe the motion in Parliament has any bearing on our case,” Miller said after the hearings finished on Thursday. “Our case has nothing to do with politics -- it concerns legal process and the constitution.”

Ex-Banker Leads Supreme Court Judges Into Brexit Battleground

Inside the courtroom, a wood-paneled hall with stained-glass windows, the mood was lighter, as participants enjoyed some in-jokes that led to guffaws among the ranks of attorneys and bafflement from everyone else. Judge Brenda Hale, 71, asked if she had been mispronouncing the hotel’s name “all my adult life?”

“You say De Keeser, I say De Keyser,’’ quipped David Pannick, Miller’s lawyer.

The judges ended up being as critical of Miller’s case as they had been of the government’s. Neuberger said it was possible to argue that Parliament had ceded its power to voters by agreeing to hold a referendum.

“It seems to me there may be some force in the argument that when Parliament comes to face up to this issue they say: ‘We’ll let the British people vote,’’’ he said on Wednesday.

On the final day, Welsh and Scottish representatives denied that their appeals were an attempt to stall or block Britain’s departure from the bloc, but because "the constitutional issues at stake go far beyond Brexit."

The Scottish Lord Advocate James Wolffe said only Parliament was given the power to change Scottish laws when the union between the two countries was formed 300 years ago, while Richard Gordon, a lawyer for the Welsh government said that triggering Brexit without a vote of lawmakers would "crucify human rights."

— With assistance by Patrick Gower

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