Inside the Case: Brexit: The Constitutional Crisis - Lord Pannick KC

In this episode of our "Inside the Case" podcast series, we speak with Lord David Pannick KC, the barrister who led the landmark constitutional challenges arising from Brexit and helped define the limits of executive power in the UK.

Lord Pannick reflects on the historic Supreme Court cases known as Miller 1 and Miller 2, explaining how they reshaped the balance between government, Parliament and the judiciary during one of the most politically charged periods in recent history. He discusses the legal principles at stake, provides a rare behind-the-scenes insight into the courtroom drama, and explores the wider implications for the rule of law today.

Transcript

Pannick: You can't, while you're negotiating the most important treaty that this country has had - ever, probably - you can't remove Parliament as a constraint, as a scrutinising body. That was the principle.

This was a legal issue. This wasn't a political issue. This was a legal question about constitutional principle, and politics had to be left out of it.

Lady Hale began by saying, “The judgment of the court is unanimous.” There was a gasp - an audible gasp - from the packed court. This was astonishing. The only precedent I could think of was the television series Dallas, where it's revealed that the previous episodes had all been a terrible dream.

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News Footage: We can now say the decision taken in 1975 by this country to join the common market has been reversed by this referendum to leave the EU. Let June the 23rd go down in our history as our Independence Day.

Frances: Two years ago, the UK voted to leave the European Union. The process of what became known as Brexit led to two landmark legal challenges in the UK Supreme Court. They prompted two of the most constitutionally significant rulings in recent history and reshaped the power balance between the government, Parliament, and the courts.

Both cases were brought by Gina Miller, a city financier and businesswoman, and they became known as Miller 1 and Miller 2.

The first challenged the government over whether it could trigger Brexit without parliamentary approval. The second challenged Prime Minister Boris Johnson over whether he acted lawfully in proroguing Parliament, bypassing parliamentary scrutiny of the Brexit deal.

It was one of the most turbulent and highly charged periods in British politics.

In both cases, the KC acting for Gina Miller was Lord David Pannick. Arguably the most influential barrister of his generation, he has acted in more than 100 cases in the Supreme Court and its predecessor, the House of Lords.

In 1978, after gaining a first-class degree in law at Hertford College, Oxford, he achieved the rare and prestigious distinction of being made a fellow of All Souls, Oxford, and a year later was called to the Bar.

There, he developed a highly successful practice in public law, becoming a QC at the age of only 36.

He was appointed a life peer in 2008 and took his seat in the Lords as a crossbencher, where he is an active participant in debates.

I began by asking Lord Pannick why he opted for a career in the law...

P: Well, I had no family background in the law. My father owned a shoe shop in Romford Market and my mother was a school secretary, but I enjoyed debating at school, Bancroft School in Woodford Green, and I was quite good at it. And I thought law would be an entertaining way of earning a living. I was an odd teenager because I used to go to the Old Bailey to watch criminal trials.

F: That is unusual, but there were quite a few of you. What did you have to say? 

P: I've got a sister. Yeah. Yes, but she's not a lawyer. 

F: And what did your parents make of that? I mean, did they think this was a punishment? 

P: I think a piece of that. Yeah. Yeah, they were very pleased. Yeah. They thought that being a lawyer was a respectable profession. Yes. 

F: But I mean, did it require money? And did you have money? 

P: No. My parents were not wealthy. No. I won a scholarship to Bancroft School. And, when I was at university, they were happy days because I was on a full grant and a full grant. And in those days when you went to the bar as well as scholarships, which I was fortunate to win, the local authority paid my fees. All of that, of course, is now a distant memory for students. 

F: It certainly is. And just, a bit more on your family and your father. So, was your father born in this country?

P: Yes. Yes, my ancestors came from Poland and Russia at the beginning of the 20th century. They were they weren't refugees, but they were Jewish people who, came to this country for a better life and who valued the values of this country and valued education, and they wanted the best for their children. 

F: So you went up to Oxford and how did you find it there?

P: Oh, I loved it. I enjoyed it enormously. I had great fun. I worked very hard. I debated not altogether wholly success for now. I was on the standing committee of the, Oxford Union. And I was a liberal Democrat, and I worked very hard, and I got a good degree. Are you still a liberal Democrat?

P: No, I'm a crossbencher. 

F: Wise. We might come to politics later. So you then came out of Oxford. You did very well, obviously, as we said. And you then went to the bar and you had, a very successful career and took silk at a very early age, I think it was said you were the youngest in the land to get silk. Was it 36? 36? 

P: Yes. 

F: And you then developed a very what became a very successful practice in public law. Whose chambers did you go into initially? 

P: Well, it was called 2 Hare Court and it had Anthony Lester, who did many human rights discrimination cases, and Michael Beloff, who was my pupil master. I started off in Chancery chambers because, I knew at Oxford the daughter of a chance through judge Lord Justice Dillon. But I didn't enjoy it. And, I told Michael Beloff, father who I knew, Max Bell, Max Beloff, professor Max Beloff, and he said, well, you must come and work with my son Michael. He does. Interesting law. And he did sports law, discrimination law, judicial reviews which were developing. So I got in the ground stage of the development of modern public laws in 1980.

F: You found that obviously far more challenging and interesting. 

P: Yeah, much more interesting. I was just drawing my first case at the bar was as the second junior to Anstey, Leicester, in the Judicial Committee of the Privy Council, and it was a case from Singapore. Our client had been, sentenced to death for drug trafficking, and it was an appeal about the constitutionality of that sentence. And, it's fascinating. And we lost and my first client was hanged. And you can only improve afterwards.

F: You have to. I think at some point you did move chambers to Blackstone.

P: The two had called became Blackstone and we moved because we were growing, expanding. We needed new premises. So we we moved across the temple and then obviously, as we know, you develop this highly successful practice. 

F: Can you remember the first case you took in the House of Lords?

P: Oh my goodness, it's a long time ago. I mean, I've done a lot of cases in the Appellate Committee as it was before it became the Supreme Court. I did a lot of cases for the government because I was on a panel of Crown counsel, and I did a lot of cases for applicants. So by the time of the Gina Miller case, you know, I was very familiar with with that context, with that forum.

F: So the case of Gina miller came to you. Can you remember meeting her for the first time?

P: Yes. I mean, what happened was that, I knew James Lipson, who was the solicitor for Gina miller at Mishcon De Reyes, and I'd also written an article, in my law column in The Times, which you, of course, expert the edited over many years. And it was an article saying that, the government could not, leave they could not decide to leave the EU without an act of Parliament.

As you know, in 2016, June 2016, there'd been nearly ten years ago, astonishingly, there was a referendum. People voted to leave. But the question was, did they need then to be another Act of Parliament? Because the Referendum Act did not say anything about the consequences of a decision to leave the process of it.

So, Tom Hickman, another barrister in these chambers, and I were instructed by James Lipson on behalf of Gina Miller. And, and we met to discuss the case, and she was a very brave woman, is a very brave woman, because by that time, there was newspaper speculation that she was going to bring these proceedings, and she was subjected to enormous online abuse. There was one man who, said he said it was a joke, but she understandably took it seriously. He said that, pay 5,000 pounds to anyone who ran her over, and he was sent to prison.

He went to prison for 12 weeks. And that was just. It was an extreme example, but there was a lot of very unpleasant, abuse directed at, directed at missions. Not at me, thankfully, but, the consequence was that there were going to be other claimants, people who, were going to support the claim being named applicants.

F: And they withdrew?

P: They withdrew. 

F: So she was left then to carry it on herself?

P: Yes. And, she was at that time or maybe she was a campaigner, but she was a business woman.

F: And so you met her. And how did you find it? Was she very forceful? 

P: Very reasonable in her view. Yes. I mean, she took the view, which was a matter of considerable principle. She obviously didn't agree with leaving the EU, but she took the view: if we were going to leave, it had to be as the result of a parliamentary act.

F: So did she have strong views about how she thought the case should be run by you? 

P: Well, she wanted the case to be presented as forcefully as possible, but she was, an excellent class in that she was prepared to be the figurehead. She expressed very helpful views on the way the case should be run, but she wisely left it to the lawyers to get on to it.

You know, she contributed, to the drafting, but she she had the political. Now she had the willingness to go ahead, but she she left the lawyers to get on with it. 

F: So you then came into the High Court and that was the first ruling on that, wasn't it? 

P: Yes. I mean, the referendum was in June. We started proceedings in July 2016.
And by I think September, we were in court, which was speedy for, British legal proceedings. But the courts recognized this was an urgent matter and it needed to be resolved. And, there was no enormous press attention, public attention, for the Divisional Court proceedings. The High Court sat with three judges given the importance of the case, they were the Lord Chief Justice, Lord Thomas.
There was the master of the rolls, Sir Terence Atherton, and there was another Court of Appeal, Lord Justice Sayles, who since become deputy president of the Supreme Court. So it was a very strong court and so appointed. 

F: It was a very high profile, politically charged atmosphere at the time, wasn't it? 

P: Yes, it was, because many people took the view that the decision in the referendum was unwise to put it moderately.
And, this was this was a big political decision. It was a challenge to the way the government was proceeding. It was the government of of Theresa may. And they thought that you what you as the lawyers and Gina Miller as the applicant or person behind it, which was trying to stop, were trying to stop Brexit. That was what the view that the public, some of the public well, certainly the case if successful, would have caused a pause. It would have required Parliament to think about the implications and about whether, it did want to press the button and withdraw from the EU. The difficulty in the Divisional Court, as a matter of presentation was that, there were no cameras in the court and that, I fear, had a very damaging effect on the way in which the public and the press treated the judgment.

Because we won. The Divisional Court held that the, the government was acting unlawfully. It couldn't just say to the EU, we are withdrawing.

F: And there was quite a strong media reaction and public and political reaction. 

P: It was an extraordinary media reaction. The media reaction from some newspapers were was that the judges were, quote, "enemies of the people."
And, this, this, you know, your people are entitled to criticize court judgments, but it was personalised. It was very abusive, aggressive. Lord Thomas said that in all his many years of experience as a judge, he'd never known anything, anything like it. He was the Lord Chief Justice and he was leading the case. And as the judges required police protection because people were online saying such terrible things about them, normally what you would expect in such a situation would be that the Lord Chancellor would step in because it was her job, it was Liz Truss. Whatever happened to her question mark? One doesn't know, but she was the Lord Chancellor and it was her job, to mediate between courts and politicians and public and to say clearly and forcefully, we believe in the independence of the judiciary. We don't necessarily agree with them as a right of appeal. We'll take it to the Supreme Court.

But she was very mealy mouthed. She was quite slow, I think, in her response, which, which, which caused great upsets amongst the judges. 

F: What do you feel about the reaction? I mean, you can't have had another case that had such a reaction.

P: No. Well, the publicity before the case was enormous, far more than any case I'd ever done before. And the public reaction afterwards was - the volume of the publicity and the extreme nature of the hostility. I think part of the problem was that the public had not been able to see on screen what was going on. So they didn't understand. And who can blame them that the issue in the court was not the merits or otherwise of us leaving the EU.

The issue was an issue of constitutional law that it's not for the government to make such a profound decision. It's for Parliament to decide. And the legal argument was very simple, that in 1972 an Act of Parliament had, let us into the EU, had created all sorts of rights and duties. And we said and the court agreed, it therefore required another Act of Parliament to decide that we were going to leave and it wasn't good enough to have a referendum.

F: And obviously you did persuade them. And the case went on up to the Supreme Court. But, just before we leave the Divisional Court, how did you personally I mean, was it alarming? Were you worried? Did you have phone calls and things like that? 

P: So no, I didn't think I had any abuse or threats. Happily, the abuse, the threats were focused on the judges, on Gina miller, on Mishcon De Ryes. Not on me. 

F: How did she feel about it? Was she deterred? 

P: Well, she was delighted that we had succeeded, but obviously felt vulnerable. She needed protection, she said. She said security guards following her around, and it was a unpleasant.

So you get up to the Supreme Court and as I mentioned a couple of times, one of the key differences there obviously, was that it was going to be shown on camera, live streamed.  That was then that people then people could see what the issues were. They could see that this was an object of court that was not politically partizan, and that the issue was an issue of constitutional law.

And they could if we did our job properly, they could if they watched and if it was reported as it was perfectly properly, people could understand the nature of the issue, that this was a question of parliamentary sovereignty, which people believe in and, and that the executive, the Prime Minister, doesn't have untrammeled power. She needs to obtain the authority or of of Parliament for the dramatic step that she was taking, which was to remove us from the EU with all the legal consequences that that follow.

And that's what the debate was, in the Supreme Court. 

F: So they decided by 8 to 3 - was it ever in doubt or how did you feel about it?

P: It was the way it went to the extent that some of the judges, as was manifest from the fact that three dissented, asked penetrating questions, and it wasn't an easy issue, because traditionally, foreign policy, is a matter for the executive.

And the argument essentially for the Crown was that, this was an aspect of foreign policy where we were withdrawing from a treaty, and therefore that's a matter, for governments. But no, I thought we had the majority. The most publicity during the hearing was devoted to an exchange that I had with, lady Hale, who was the deputy president, because I cited a case, the attorney general against, de Keyser's Royal Hotel.

And Lady Hale intervened. She said, well, it's not de Keyser, it's DeKeyser. And I said, you say to Keyser, and I say to Keyser, and given the low standard of legal humor, this was thought to be riotously funny. And everybody laughed. 

F: Finally, there was a joke. 

P: There was a joke which broke the tension. Yeah. And, what I didn't do, I thought about it after what I didn't do, perhaps wisely, was go on to say that this, of course, is, taken from, the IRA Gershwin lyric.

You say to me, so I say tomato, and it comes from the song, the Gershwin song: Let's call the whole thing off. And I think it would have been otherwise. So, Yeah, it's a long day. Yeah. You know, that's, another context of Brexit that would not, not have been helpful, but it did lead to some enterprising barristers for charity producing T-shirts with my picture on, and the slogan was, De Keyser de geezer. Something like that 

F: You became a celebrity online, I think. And social media for five minutes. Yes, yes. Did your family buy the T-shirt? 

P: The principle that, everybody is famous for five minutes. Yes. My children did buy it, which is somewhere. Somewhere in a cupboard locked away. I think probably the Pannick family bought the majority of those t shirts.

But it lightened up what was otherwise quite a dry set of proceedings, and people could watch it. They saw it, and millions of people did watch it. I did indeed. 

F: And did lady Hale find it funny? 

P: Yes, she found it funny. Even Lord Sumption laughed at that. That's quite that's quite something, though.

F: That is. That is indeed. Yeah. How did you just, finishing on the interjections by the Supreme Court justices, did he intervene much? Was he difficult? Because, of course, you'd acted opposite him before he became a judge. 

P: Sumption? Yes. I mean, he was an old, long standing rival, often appeared and we did cases against each other.

But he did intervene. And he made it very clear during the hearing by his questions that he, thought that, Parliament would need to intervene if we were to leave the EU. So his, his vote for in the majority was no surprise. He made it very clear what his views were during the hearing, as did many or all of the judges.

But he did intervene, and he made it very clear during the hearing by his questions that he thought Parliament would need to intervene if we were to leave the EU. So his vote in the majority was no surprise. He made it very clear what his views were during the hearing, as did many, if not all, of the judges.

F: Lord Neuberger, I think, did not reveal his hand. He was the President then of the Supreme Court. Did he write the judgment?

P: Well, the eight of them in the majority had a joint judgment, and there were dissenting judgments as well.

F: Given the difference you think having cameras made to people’s reaction and understanding of the whole issue, do you think we should have cameras more widely in court?

P: So we do now. Most cases in the Supreme Court are available for broadcast.

F: I’m thinking lower down.

P: Yes, lower down—there are obvious difficulties with criminal trials, with witnesses and juries. But by and large, yes, I’m very strongly in favour of cameras in court. Transparency is very important, and it assists public understanding of the issues that come up. Many of them are of public importance, and it’s right people should be allowed to see.

I should add that if you are an advocate or a judge, you very quickly forget that cameras are there. You just do your job—you present your case, you judge the case. I don’t think it affects performance.

F: So what were the consequences of that particular ruling?

P: The consequences were, from the point of view of those opposed to Brexit, very disappointing. Within a couple of months, Parliament had been presented with a bill by Theresa May’s government, and Parliament voted in favour of leaving the EU.

So it held up the process. It was damaging to Theresa May’s government, and she then spent the next two years trying to implement leaving the EU. It had a major impact on the process, but ultimately Parliament did what the court said was necessary—it legislated, and then proceeded.

There were many people in Parliament who strongly opposed leaving, but the political argument was powerful: there had been a referendum, people had voted to leave, so therefore we left.

F: Did you find it difficult, given your own view?

P: My view is I voted to stay in the EU. But I have a very firm principle at the bar: I act for people whether I approve of them or not - whether I like them or not, whether they’ve caused offence or I’m neutral. My job is to present their case, not to express my personal views. So it doesn’t affect me.

F: So just two years later, Boris Johnson is now Prime Minister…

P: Yes. Theresa May had been unable, because of the lack of a working majority, to do a deal. She fell.

Boris Johnson became Prime Minister and made it very clear early on that if needed, he would prorogue - suspend - Parliament to remove the difficulty of the Commons and “get Brexit done.”

F: So you knew this was likely to happen?

P: Yes. From the summer of 2019, we were preparing - Mishcon’s team, Gina Miller, Tom Hickman and I - because we knew there was a real possibility of prorogation.

We took the view that this would be unlawful - that you cannot suspend Parliament simply because it is inconvenient.

I also met Sir John Major, who participated as an intervener.

F: So you were essentially waiting for it to happen?

P: Yes, but preparing. I was actually at the end of a family holiday on safari in Botswana when the message came through: Boris Johnson had advised the Queen to prorogue Parliament - for five weeks, which was unprecedented.

F: Did you cut your holiday short?

P: No - we were already heading back. I worked on the plane, we filed our judicial review within a week, and the case was heard very quickly by the High Court.

F: And in parallel, there was also a Scottish case?

P: Yes, brought by Joanna Cherry MP. Similar arguments - but it didn’t go well initially. The court held it was a political issue, not a legal one, so it wasn’t justiciable.

F: That must have been disappointing.

P: Yes, but we knew it would go to the Supreme Court. And the Scottish court later reached the opposite conclusion - saying it was justiciable and unlawful.

So both cases went to the Supreme Court together. It was heard very quickly because Parliament had been suspended and needed to be able to sit if we were right.

F: You emphasised that this was a constitutional, not political, issue?

P: Exactly. Our only chance was to persuade the court this was a legal question about constitutional principle.

Unfortunately, counsel in the Scottish case took a more colourful approach - referring to Boris Johnson as “the father of lies” and quoting Mandela and Gandhi. Entertaining, but not the most helpful approach.

F: Were you surprised by the Divisional Court’s decision?

P: No - it was clear how they were thinking. The government’s argument was that prorogation is a prerogative power and not something courts had previously intervened in.

Our response was that no Prime Minister had ever abused that power in this way before.

F: And they didn’t produce evidence explaining the five-week suspension?

P: No - and that was remarkable. There was no explanation for why Parliament was suspended for such an unusually long period in the middle of a session.

There were strong rumours that no civil servant was willing to provide a witness statement justifying it.

F: And that became part of your argument?

P: Yes, it was something we emphasised.

We also focused on the effect of the decision - preventing Parliament from sitting - rather than motive, after an intervention from Lord Reed suggested that was the stronger ground.

F: Did you find the case daunting?

P: I’m always nervous. Advocacy is nerve-wrackiny, you don’t know what will happen. But once you start, adrenaline takes over.

This case was especially intense because of the global attention, hundreds of thousands watching, media speculation everywhere, people recognising me in the street.

F: And then the judgment 11 - 0 in your favour?

P: Yes. We had no advance notice. Lady Hale began by saying the judgment was unanimous, and there was an audible gasp in court.

She held that the prorogation was unlawful and that it was as if Parliament had never been prorogued.

It was astonishing. The next day, Parliament resumed.

F: You must have been delighted.

P: It’s very rare to have cases where everything goes right. This was particularly satisfying.

F: And the political consequences?

P: Immediately damaging to Boris Johnson’s government, though he still went on to win the 2019 election.

More broadly, it reinforced that government must act lawfully, and that there are consequences if it does not.

It also caused tension between Downing Street and the Palace, as the Queen had been given improper advice.

F: And he later instructed you?

P: Yes, in the Privileges Committee matter. He was a model client, hardworking, engaging. Though frustratingly, counsel aren’t allowed to speak in that setting.

F: Looking back on the Brexit cases, what stands out?

P: That the courts asserted constitutional principle against the executive, upheld the role of Parliament, and did so publicly with reasoned judgments. It was an important statement of the rule of law, not just in the UK, but internationally.

F: And was it really a moment when the courts established or asserted their their authority over the executive as the ultimate lawmakers? 

P: Yes. The rule of law requires that somebody has the last word on what the law requires and what the law allows.

P: And those people, all the courts, and they did their job, in my view, in very difficult, highly charged political circumstances. But they did their job.

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