Experts warn government is 'headed for comprehensive defeat' in Supreme Court over Brexit

Appeal: Police walk past the entrance to the Supreme court in London on Monday
AFP/Getty Images
Saphora Smith5 December 2016

Britain’s top judges will unanimously reject the Government’s argument that it can unilaterally start formal Brexit negotiations, according to legal experts.

Professors from the prestigious London School of Economics (LSE) said it was “highly likely” the Government’s appeal to the Supreme Court would fail, with one giving the Government just a ten per cent chance of success.

The Supreme Court began on Monday its four-day landmark hearing to decide whether the Government needs parliament’s consent to invoke Article 50.

The court’s eleven justices will rule on the Government’s appeal against last month’s High Court decision that only parliament has the authority to invoke treaty change.

Attorney General, Jeremy Wright, will be representing the Government
Victoria Jones/PA

Jo Murkens, an expert in constitutional law at LSE, predicted the Government was heading for defeat with all eleven justices ruling in Gina Miller’s favour.

He said: “If I had to make a prediction, I’d anticipate a clear and comprehensive defeat for the Government; eleven to zero in terms of judges’ rulings.

“The outline of the Government’s submission to the court is not radically different from what they presented in the High Court. That case was comprehensively lost, with the three judges unanimous in their decision.

“So it would be very surprising if the Supreme Court overturned the High Court ruling.”

Gina Miller arrives at the Supreme Court
Victoria Jones/PA

Professor Murkens said the Government’s legal argument did not stand up: “The Government admitted in the High Court that individual rights would be lost in Britain’s leaving the European Union and because of that the decision to trigger Article 50 has to be supported by an act of parliament.

“The law on that point has been consistent since 1610. There is 400 years of case law pushing in the same direction and in that respect it would be a far bigger surprise if the Supreme Court ruled in the Government’s favour than if it ruled against it.”

Damian Chalmers, an expert in EU law agreed the Government would likely be defeated as it had a "difficult hand to play".

He said: “Based purely on the strengths of the legal case my guess is that the Government only has a ten to fifteen per cent chance of winning.

Justices of the Supreme Court leave the Supreme Court in Parliament Square.
Reuters

“These are not magic numbers but I think it is very likely that the appeal will fail.”

Professor Chalmers said the weakness of the Government’s case lies in the fact that in Britain the Government cannot unilaterally change legislation.

He said: “The pro-parliamentary legal argument is that Article 50 affects rights derived from statute which the Government cannot change unilaterally.

“Imagine if every time Government couldn’t get a bill through parliament they just held a referendum to bypass parliament, there’d be uproar.”

Decision: The judges will hear the case this week before giving their judgement in January.
PA

He said for the Government’s appeal to be successful the Attorney General would have to prove that triggering Article 50 would not affect UK domestic rights derived from EU law, the rights of Britons in other member states and the rights of Britons against EU institutions, which he said would be “very difficult.”

“The idea that the referendum gave Theresa May the job to leave the EU is a political argument.

“Legally, it is better to say that the referendum gave parliament the job of leaving the EU.”

In a statement posted on the Supreme Court website the Justices said they were “aware of the public interest in this case and the strong feelings associated with the political questions of the Uk’s departure from the EU.”

They added: “The Justice’s duty is to consider the legal questions impartially, and decide the case according to the law.”

The hearing is expected to last four days until Thursday, December 8 with the verdict expected in January.

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