LONDON — A “child of six” could see the flaws in the government’s legal case, the
lawyer representing the Welsh government in the Article 50 case told the Supreme Court on Monday morning.
Richard Gordon QC insisted that Wales is not trying to block Brexit, but put forward an impassioned case for why Theresa May must secure parliamentary approval before initiating Britain’s formal departure from the European Union.
Using royal prerogative powers to invoke Article 50 of the Lisbon Treaty would “crucify” human rights and “trash” basic constitutional principles, he said. He added that a “child of six” could identify the flaws in the government’s legal case, phrasing that triggered the response of “well put” from Lord Neuberger.
Gordon repeated the argument made by Gina Miller’s lawyer Lord Pannick earlier in the week that the 2015 referendum act had clear political significance but was nothing to do with the legal question facing the justices.
“The Brexit vote split the UK. It split it into four parts. We have absolutely no quarrel with the vote. It was almost the most divisive political event that has happened in the last several decades,” he said.
“Who is going to judge what happens next according to law?… It must be parliament.
“All the recent events have nothing to do with this case. The Referendum Act of 2015 has nothing to do with the issues in this case. It’s a statute that had died. It has fulfilled its purpose. You cannot revive a corpse by tearing up the death certificate.”
He added that by bypassing parliament and using royal prerogative powers to trigger Article 50, Theresa May’s government would not just nullify rights that only MPs can legislate on, but establish a “new constitutional order” that would be totally unprecedented.
Gordon followed the Lord Advocate for Scotland James Wolffe, who argued that Westminster must seek Scotland’s consent before taking action which will affect matters north of the border. He cited the Sewel convention, which makes clear that “Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.”
Helen Mountfield QC, who is representing the crowd-funded Peoples’ Challenge, told the Supreme Court that the EU laws that have affected the UK since 1972 are domestic laws which only MPs, not government ministers, can repeal or nullify. At one point, the lawyer compared royal prerogative to the mythical aquatic creature the Loch Ness monster. ‘”Just because it hasn’t been caught, you can’t assume it’s still there.”
The case concludes today, with a verdict expected in early January.
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