Judges consider arguments in case to derail Brexit

The most serious legal obstacle so far to Britain’s departure from the EU began with a fund manager, some British ex-pats and a Spanish hairdresser.

After three days of argument in the High Court, a panel of Britain’s most senior judges retired on Tuesday to consider the merits of a challenge that could derail the government’s plans for Brexit.

The case, which has emerged as a major constitutional test, has generated huge public interest, with full galleries and a televised feed to overflow courts for those who could not fit into the neo-gothic splendour of court four, the largest of the courts in the Royal Courts of Justice.

Outside on Tuesday one group waved the EU’s blue and gold flag while a Brexit supporter held up a placard reading: “Bad Losers”.

The challenge was brought by Gina Miller, an investment manager at SCM Private, together with four other parties, one of which crowd-funded its way to legal advice. It hinges on whether the government has the right to start the process of Brexit without a vote in parliament.

Gina Miller arrives at the High Court in London, where she is leading a legal challenge over Theresa May’s right to trigger Article 50 without a vote in parliament © PA

The government claims it can use so-called royal prerogative powers — the residue of powers once held by British monarchs. But the case appears finely balanced, with several legal experts suggesting the government had underestimated the strength of the case against it.

Listening intently to the submissions, the three senior judges led by Lord Justice Thomas, the Lord Chief Justice, frequently interrupted the barristers with questions or pressed them on legal points but have given no indication of which way the court will rule.

Lord Justice Thomas occasionally confessed that he was “baffled” by elements of the government’s argument.

Also hearing the case was Lord Justice Sales, a former first Treasury counsel, and Master of the Rolls Sir Terence Etherton, Britain’s first openly gay senior judge and a former Olympic fencer.

Master of the Rolls Sir Terence Etherton © Photoshot

Ms Miller, who has been in court each day, has received death threats for bringing the case, prompting a rebuke from the court that those responsible would face “the full vigour of the law”.

Her case was argued by Lord Pannick, who repeatedly drove home the point that, by triggering Brexit without a vote, the government would deny British citizens the rights they currently have under the 1972 European Communities Act.

If Britain left the EU, these “fundamental” rights will unable to be restored by parliament even if it enacted new laws, Lord Pannick argued.

Some rights — such the right to take a legal case to the European Court of Justice in Luxembourg — would be taken away from British citizens forever if Article 50 is invoked, he claimed.

“If you are going to take these rights away you need parliamentary authority,” Lord Pannick said.

Attorney General Jeremy Wright © Reuters

The devolved administrations of Scotland and Wales sent barristers to watch the proceedings but did not make submissions.

Leading the government’s defence was Jeremy Wright QC, the government’s attorney general, who argued that Ms Miller’s legal challenge was a way of subverting the referendum result.

Mr Wright claimed to the High Court that the case was no “narrow” legal challenge but it “in reality seeks to invalidate the decision taken to withdraw from the EU and require that decision to be taken by parliament.”

“Parliament is now asked to answer the same question as was put to the people in the referendum,” Mr Wright said.

The government argued that while some rights would be “hollowed out” by leaving these would mainly be rights such as electing MEPs, lost because Britain had “withdrawn from the club” of the EU.

As the case ended Lord Thomas told the court that the judges will “take their time” and give a ruling “as quickly as possible.” A ruling could be expected in a few weeks.

But it may not be the last word on the issue. Both sides are likely to appeal the case to the Supreme Court which is likely to hear the challenge in December.