The battle over Brexit continues

Lord Neuberger took the unusual steps this week of issuing a ban on identifying parties in the Art 50 case, and asking parties whether they wanted any of the justices to stand down.

Opening the appeal, which is being heard by all 11 justices, Lord Neuberger took protective measures on behalf of claimants, their families and children who are interested parties, by ordering that their identities were not to be revealed.

“Various individuals have received threats of serious violence and unpleasant abuse in e-mails and other electronic communications,” he said.

“Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law.”

He added: “It is right to record that, at the direction of the court, the registrar has asked all the parties involved in these proceedings whether they wish to ask any of the justices to stand down. Without exception, all parties to the appeal have stated that they have no objection to any of us sitting on this appeal.”

Pro-Brexit campaigners recently called on Lord Neuberger to stand down from the case because his wife had sent anti-Brexit tweets.

Commenting ahead of the hearing this week, leading constitutional specialist Michael Zander QC says the Scottish government’s submission could be a significant turning point.

The devolution issue is governed by the Legislative Consent Convention (Sewel Convention), which requires that Parliament “normally” not legislate with regard to devolved matters without obtaining the consent of the devolved assembly.

Wales argued that it has a right to be informed, not that it has a veto. The Scottish government, on the other hand, “goes considerably further”, says Zander. It argues that Brexit would annul or disable EU law and domestic law in force in Scotland, which means the prime minister could not use the Royal Prerogative to trigger Art 50.

Zander says: “If the court were to hold that the consent of the Scottish Parliament is a constitutional requirement, the future of Brexit would be in doubt.”

The Lord Advocate, James Woolfe QC, who advises the Scottish government, will put his case before the court later this week.