Five things we learned from the Brexit hearing

  • Video report by ITV News Political Correspondent Emily Morgan

Gripping TV it may not have been but the televised four-day hearing of one of the most important constitutional cases in British legal history was a box office event for fans of legal argument.

The Supreme Court will rule in January whether to overturn a High Court ruling that the Government cannot formally begin the Brexit process - by invoking Article 50 - without the approval of MPs.

A full panel of 11 justices heard arguments both for and against the Government position from some of the country's leading legal experts.

Here's what we learned:

1. Did 'silent' Parliament bottle it?

Attorney General Jeremy Wright outlined the appeal case on Monday before top government lawyer James Eadie got into the nitty-gritty of precedents to attempt to justify the Government's use of "prerogative powers", the executive's historic rights, to initiate Brexit.

Mr Wright's claim during his opening argument that Parliament missed its opportunity to block the triggering of Article 50 stood out, according to ITV News Political Editor Robert Peston.

Mr Wright also told the justices the Government's prerogative right to trigger Article 50 was not given "on a whim or out of the blue" but was the "logical conclusion of a process in which Parliament has been fully and consciously involved".

The Advocate General for Scotland, speaking in support of the Government, rubber stamped the point on Tuesday.

Lord Keen said Parliament knew the Government could trigger Brexit using its prerogative powers and chose to keep "silent" on the matter when it formed legislation to sanction the EU referendum.

2. If both took us in shouldn't both take us out?

Government lawyer James Eadie QC appeared in front of the justices on three of the four days of the hearing.

The Government got into thornier ground when comparisons were made to the method by which Britain joined what would become the EU back in the early 1970s.

Supreme Court justices took turns to challenge senior government lawyer Eadie over the terms of Britain's proposed exit from the EU based on the nature of its entry.

As ITV News Political Editor Robert Peston noted, the justices asked Mr Eadie if Britain's entry had been a joint effort between the Government and Parliament should its exit not be a joint effort too.

The QC representing Government-challenger Gina Miller at the hearing took up the issue as he began his case on Tuesday.

ITV News reporter Olivia Kinsley, who was watching the court proceedings, summarised Lord Pannick's central argument:

The crossbench peer said the 1972 Act, which took the UK into Europe, does not allow for it to be overridden by prerogative power.

He said ministers had no power to "nullify" the 1972 Act after it was enacted and take away statutory rights and obligations created under it "without parliamentary approval".

Lord Pannick said: "There is no relevant prerogative power in this context."

That inevitably supported his argument that only a Parliamentary vote can be used to trigger the start of the UK's exit from the EU.

3. Does the referendum vote have any power in law?

Lord Pannick argued the case for Government challenger Gina Miller.

June 23's 52%-48% referendum result in favour of leaving the EU was never designed to be binding and its result carries no weight in law, Lord Pannick QC told the Supreme Court.

The crossbench peer said while the historic public vote was "a very important matter" it had nothing to do with the legal issue before the court.

Lord Pannick submitted that the Government had "deliberately chosen a model that does not have any binding legal effect".

He pointed out there had been many occasions when the Government had gone down that route when the public go to the polls.

"It is open to Parliament to institute a referendum which does have a binding legal effect and there are many, many examples where of parliament has done so," he told the justices.

4. MPs have voted on Brexit this week - but it has no impact

MPs voted by a majority of 372 to back the Government's plan to trigger Article 50 to begin the Brexit process by the end of March 2017. Credit: House of Commons

MPs did get to have their say on the Government's Brexit strategy in Parliament while the hearing was still under way - and the result was overwhelming.

But Wednesday night's opposition motion across Parliament Square - as to whether MPs agreed with the Government's proposed Brexit timetable - had no bearing on the legal issue being considered at the Supreme Court.

A total of 461 MPs voted to back Theresa May's plans to trigger the process for quitting the European Union by the end of March 2017 - if the PM publishes her Brexit plan first - compared to 89 MPs who voted against it.

The result, though, was legally non-binding and had no impact on the Brexit decision the justices will go on to make.

As Lord Pannick QC told the hearing during its third day: "The law of the land is not altered by a motion in Parliament. This is a basic constitutional principle."

5. Scotland and Wales could prove huge sticking points

Richard Gordon QC said a child of six could understand the faults in the Government's case.

Lawyers for both Scotland and Wales made submissions to the court - and tore into the UK Government's case.

Richard Gordon QC, appearing for the Welsh, said that rules requiring Parliament to consult the devolved administrations over certain decisions was "the only glue" holding together the UK constitution.

It suggests that to deny MPs a vote over Brexit could send wider shockwaves through the relationships with Scotland, Wales and Northern Ireland.

Mr Gordon argued that Theresa May was trying to "drive through" constitutional change of a "seismic nature".

He said that a "child of six" could understand the "elementary" failings in the government's case.

His strongly-worded arguments highlight the depth of feeling from the devolved administrations over the issue, and suggests the result could create serious tension between the countries that make up the UK.