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After the advocacy, what next for the Article 50 case in the Supreme Court?

December 9th, 2016

brexitmeansgrammar

Picture credit: Twitter

Alastair Meeks: current odds on the Government winning are value

2016 has had many twists and turns, but from a lawyer’s viewpoint one of the treats has been the unfolding of the Article 50 case.  We have been given the opportunity to observe perhaps the most important case in constitutional law for nearly 200 years.

Let’s set to one side the disgraceful behaviour of the press and some extremist politicians in seeking to bludgeon the judiciary into submission regardless of what the law itself might require.  The case itself has so far been a fantastic advertisement for British justice.  We have seen the law move speedily – Jarndyce v Jarndyce is an out-of-date cliché that is going to be a lot easier to shrug off now.  It has captured the public’s imagination because of its potential impact on Brexit.  The Supreme Court has made full transcripts of its hearings available at the end of each session and anyone who wished to could follow its proceedings live, watching some of the cleverest people in the country tussle with legal precedent and practical principle, with the parties’ written arguments made freely available also.

The advocates had their arguments tossed and gored in public, with proceedings being live-tweeted by professional journalists and legal enthusiasts.  Judgment is now expected some time in January.

Off the back of this and after some feline testing by some of the Supreme Court judges of the Government’s position, the betting public has concluded that it is pretty likely that the first instance judgment will be upheld by the Supreme Court.  At the time of writing, “overrule” was last matched on Betfair at 5 (4/1 in fractional odds).  Is this right?

Before the case was heard at first instance, I ventured the opinion that the applicants’ case stood a good chance.  At the time, I was going out on a limb because the weight of the legal academic argument was very much tilting the other way.  This now seems to be completely forgotten about.  Yet the legal academic argument on the Government’s side is still all there and was made in great detail and with great skill for the Government by James Eadie QC.  This is not one of those cases where all the arguments point one way.

So what happens next?  There’s a latent assumption by many that at the end of the advocacy, the judges’ thinking stops.  This simply isn’t true.  It’s not true of the most routine case in front of one judge (I’ve seen a judge have further thoughts after he had issued a draft judgment) and it especially won’t be true of perhaps the most important constitutional judgment for nearly 200 years that’s been heard by 11 judges.

In fact, Lord Neuberger, President of the Supreme Court, gave a speech as recently as three weeks ago when he explained the process:

“40. A rather different aspect of Supreme Court judgments is how they come to be written. I have been keen to encourage a more collegiate, even a collaborative, approach towards judgment-writing. Although the trend is somewhat variable, there has been a greater tendency towards decisions with single judgments, and a definite increase in the number of jointly authored judgments…

41. So far as mechanics are concerned, following the sending round of draft judgments, we often have email discussions and we not infrequently have meetings, sometimes to see whether we can agree on a single judgment, sometimes to reduce or eliminate differences, and sometimes for competing views to be discussed. These discussions often, but I must admit not always, result in some re-drafting and a greater measure of agreement than existed before.

42. I hope – and believe – that these practices not only help foster good relations, a good sense of collegiality, between the Justices, but also serve to produce judgments which are of a better quality than if we did not adopt them. These practices do however have two disadvantages. First, greater collaboration means that Justices have to give more time to each decision than they otherwise would have to give. In one or two cases, Justices have found themselves writing the eleventh version of a judgment in order to deal with different colleagues’ different concerns – or even the same colleague’s changing concerns. Secondly, for the same reason, it means that litigants may have to wait a bit longer for their judgments.”

Only Supreme Court judges themselves will know exactly how this works but it seems pretty clear from this detailed account that there can be a lot of additional debate.  The words of their judgments will be studied for generations to come. They will want to make sure they impress.  With eleven judges deliberating on a hugely controversial case, the advocacy in this case will be likely to prove only a springboard for the discussion to come.

So I have to say that I find the prices in this market quite absurd.  While I stick by my original view that the applicants’ case has much to commend it, this is a long way from a done deal and even taking the bleakest view I can of the Government’s case I can’t see it as worse than a 2/1 shot.  At 4/1 or thereabouts on Betfair, it’s clearly worth backing.  Do so.

Alastair Meeks