In the sixth and final episode of Brodies' podcast series 'The Case Files' Christine O'Neill KC discusses three cases that arose out of the aftermath of the UK referendum on membership of the European Union. Each case reached the UK Supreme Court, each sheds light on important aspects of the British (and Scottish) constitution and Christine appeared in each as junior counsel for the Lord Advocate.

The first case was widely referred to in the press as "the Article 50 case" but is reported in the law reports as Miller v Secretary of State for Exiting the European Union [2018] AC 61. Businesswoman Gina Miller brought a challenge that focused on the decision to 'trigger' Article 50 of the Treaty on European Union and start the two year clock on negotiations for the UK's departure from the EU. The central question for the Supreme Court was whether the power to trigger rested with the UK Government or had to be given to the Government by an Act of Parliament. The Lord Advocate made arguments about that question - which the Court decided in favour of Parliament - but also about the extent to which the Scottish Parliament (and other devolved bodies) should be asked for consent to any such legislation.

"Round 2" in this series is the challenge brought by the UK Government to a Bill passed by the Scottish Parliament which was intended to deal with some of the consequences of Brexit for the law of Scotland - and to preserve aspects of EU law in the Scottish legal system. The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill - Reference by the Attorney General and Advocate General for Scotland 2019 SC (UKSC) 13 is a highly technical case but an important one in terms of our understanding of the powers of the Scottish Parliament. Although the Supreme Court ruled that certain aspects of the Bill (including the attempt to retain the European Charter of Fundamental Rights) were beyond Holyrood's powers it rejected other elements of the UK Government's case and allowed the Scottish Parliament's "keeping pace power" which allows the Scottish Government to give effect to post-Brexit EU law.

The final case in the hat-trick is the challenge to the prorogation of the UK Parliament in 2019. Gina Miller was again involved in a challenge taken in the English courts - with parallel proceedings being taken in Scotland by a group led by Joanna Cherry MP.

In Cherry v Advocate General for Scotland 2020 SC (UKSC) 1 the Supreme Court - delivering a judgment that was watched around the world and that made Lady Hale's spider brooch famous - concluded that Prime Minister Boris Johnson was wrong to have advised the Queen to prorogue Parliament. The decision reflects the Supreme Court's concern to protect Parliament and the democratic process - and Parliament's right to hold the Government to account.

Further information

In episode 6 of The Case Files, Christine discusses in more detail the background to these three cases, Brodies' involvement and their significance today.

Click below to listen to 'The Case Files - The Brexit Files' or find us on Apple Podcasts, Spotify or wherever you usually listen to your podcasts by searching for "Podcasts by Brodies."


Christine O'Neill KC

Chair & Partner