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‘The outcome of the Supreme Court is not foreseeable’: City lawyers react to Brexit challenge

City lawyers across private practice and the Bar have reacted as the High Court has today (3 November) decided that the government does not have the power to trigger Article 50 without parliamentary approval.

Following a three-day hearing in October the Lord Chief Justice, Lord Thomas of Cwmgiedd – sitting with the Master of the Rolls, Sir Terence Etherton, and Lord Justice Sales – gave their ruling this morning in this historic constitutional case. The Supreme Court has now given a listing for the case for the week commencing 5 December.

Brick Court Chambers’ Maya Lester QC told Legal Business that there might now be other parties applying to intervene in the Supreme Court, including Scotland’s Lord Advocate. She said: ‘No doubt the government will go away and think about the way in which it’s expressed its case and whether it wants to change the way it presents its case and put it differently. There is everything to play for.’

‘The court was testing the government’s argument a lot so it may not come as a total surprise. It was expected the government would ask for an appeal.’

Lester added that although the judgment expresses the arguments in simple terms, the debate is not straight forward: ‘Although the judgment expresses the arguments simply, the arguments for both sides are serious. They’re obviously arguments on which educated lawyers and judges can disagree. The outcome of the Supreme Court is not foreseeable or whether they’ll agree or not.’

‘People often say the UK doesn’t have a constitution because it doesn’t have a written constitution but the judgment is clearly saying it has constitutional principles which apply and where you are withdrawing fundamental rights from people or fundamentally altering domestic law, which is inevitably going to happen as a result of triggering Article 50, then only parliament can do that.’

Clifford Chance public policy partner Phillip Souta said: ‘It extends the uncertainty and makes planning and investment tougher for businesses. I don’t think it was a huge surprise, to be honest. There’s a big question as to what happens next. We will just have to see what the Supreme Court says about it.’

Kieran Laird, a spokesperson for Gowling WLG’s Brexit unit, said: ‘This decision is plainly the right one. Parliament is the highest authority in the UK and the legislation that it enacts cannot be overridden by the government relying on residual prerogative powers.’

‘The government is going to appeal so this decision is a dress rehearsal for that of the Supreme Court in December.’

In response to the decision, David Greene, senior partner of Edwin Coe, acting for Deir Santos, one of the applicants in this important legal challenge, called the decision ‘a victory.’

The government, meanwhile, said: ‘The government is disappointed by the Court’s judgment. The country voted to leave the European Union in a referendum approved by Act of Parliament. And the Government is determined to respect the result of the referendum. We will appeal this judgment.’

According to documents released under the Freedom of Information Act to Legal Business, the Department for Exiting the European Union has spent more than £500,000 on legal costs with the Government Legal Department since it was founded in July. Costs as of 18 October had reached £566,000 – or around £43,500 per week. At least some of the costs will have gone towards defending the legal challenge that was launched against the department, which instructed some of the countries top QCs to defend its case.