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One reason why the SC took a different view than below is this was won on different grounds. In particular, there is now a legally enforceable constitutional right to access to the courts. A domestic right I'm pleased it wasn't just me who didn't know about, also experienced Counsel who argued it up to the Court of Appeal ! If you combine this with the Article 50 Miller case, it's clear that as the government are moving forward with Brexit but giving discretion to UK courts to continue to follow ECJ caselaw, the SC are asserting themselves, UK law and the opaque unwritten British Constitution. Won't be plain sailing ahead for the government....

"64. The issue concerning the effect of the Fees Order on access to justice was argued before the courts below on the basis of EU law, although some domestic authorities and judgments of the European Court of Human Rights were also cited. Before this court, it has been recognised that the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law. The case has therefore been argued primarily on the basis of the common law right of access to justice, although arguments have also been presented on the basis of EU law and the European Convention on Human Rights. "

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