People’s Challenge – Report from the High Court: day 3

Yesterday was the third and final day in the High Court hearing, finishing the first stage of one of the most important constitutional cases ever heard.

Once again we want to thank each and every one o four 4918 supporters for making this happen. Without your support we would not have been able to bring this case and present Court with our important arguments. Special thanks also go to Jolyon Maugham QC,who conceived of a crowdfunded challenge to the government’s position, to our legal team for presenting the case so compellingly and to the Royal Courts of Justice staff for arranging live video feeds from the hearing room and transcripts every day so the public could follow the case closely. The complete set of transcripts,including that made yesterday, is available here.

What follows are some highlights from yesterday.

Most of the day was taken up with further submissions of the Government from Mr Jason Coppel QC followed by the replies of Lord Pannick QC for Gina Miller, Dominic Chambers QC for Mr Dos Santos, Helen Mountfield QC for the Peoples Challenge, Patrick Green QC for the expat interveners and Manjit Gill QC for a group of children and carers.

However,the day began with Mr James Eadie QC returning to Court to deal with questions the Court had asked on Monday.

Importantly,Mr Eadie continued to argue that there would be some Parliamentary involvement within the process of leaving the EU. He submitted that in line with the standard procedure for international treaties the agreement following the enactment of Article 50 the new treaty between the EU and the UK “will be subject to ratification process in the usual way”. In that it would likely require an Act of Parliament at ratification stage.

The main difficult with this submission is obvious. If there is an agreement with the remaining states (and there may not be) and if it results in a treaty which requires ratification (and it may not result in that kind of treaty) Parliament can only agree to or reject the treaty. The Article 50 process will be well underway and, two years from notification, we will automatically leave the EU, treaty or not, unless this period is extended.

The Court picked up this point straightaway, and questioned Mr Eadie about it at length. For example, the Lord Chief Justice asked:

But could the United Kingdom and the European Union agree it didn’t need ratification? Is that what you mean?”

to which Mr Eadie replied “they could”.  

Mr Eadie then referred to the infamous ‘The Great Repeal Bill’ stating that it will:

drag in where possible current EU law rights that are not already enshrined in domestic legislation in the first place… Parliament will then,again, necessarily, and inevitably, be involved in any further alteration to the newly domesticated rights.”

But these rights would not include those linked to the rules of the ‘EU club’, nor rights which Parliament had no power to grant, such as free movement rights.

Finally from Mr Eadie,there was an important concession: that the Court was legally entitled to rule on the issues in the case. On this the Lord Chief Justice commented “as far as I understand it, justiciability is no longer an issue.”

The Government then passed the baton to Mr Jason Coppel QC to make submissions in response to our own and the interveners’ arguments. Mr Coppel asserted that a right free movement right, to live in France:

is not a right which is conferred by the European Communities Act”


They are [sic] a right against the government not to stop you from leaving the country, or not to deter you from leaving the country, by fining you, for example, and to allow you to come back to France once you have had enough of the good life.”

To this the Lord Chief Justice responded:

I am sorry, I am slightly baffled. I don’t understand why the content of these rights are not controlled by Parliament.” 

This was because the Lord Chief Justice had understood free movement rights to have been granted to UK citizens by Parliament through the 1972 European Communities Act, and strengthened through EU Citizenship, as we have argued all along.

Lord Pannick then began his impressive reply by emphasising the key points in his case:

The defendant accepts that a notification under Article 50(2) will inevitably result in the EU treaties no longer applying to this country [and that] the consequence of the treaties no longer applying is that the rights conferred under section 2(1) of the 1972 Act are stripped away. They are destroyed… we say notification will inevitably cause some statutory rights enacted by Parliament to be destroyed.”

He also stressed that


“…whether there is a new agreement [with the EU] is out of the hands of Parliament.” 

Helen developed this in her own reply using a thermostat analogy:

Parliament has said we want control of this system of EU law. The executive can’t turn the heat up unless it has our approval, and the approval of the people in the direct referendum. It can’t turn the heat down unless it has our statutory approval. 

I say it is quite impossible to say that if they had been asked they would say: but the minister can turn the heating off all together and then take away the thermostat all on his own with no authority a tall.”

Mr Green’s submissions resulted in the biggest laugh of the day (yes,laughing is sometimes permitted in court!) He stated:

My Lord, finally I turn to the submissions of my learned friend Mr Coppel about the nature and quality of the rights in issue before this court, which, my Lords, may I say were surprising in the sense that advocates use that word, and surprising in the sense that we were all surprised.

There is a fundamental reason for that. That is that they completely overlook the unique legal order on which I have already made some brief submissions, which is an absolute cornerstone of principle for the establishment of the Communities and then the Union, and to approach those questions, ignoring the nature of the unique legal order, is exactly the same as approaching the common law questions ignoring Parliamentary sovereignty.

The High Court hearing was concluded, approximately two hours over time,with a promise from the Lord Chief Justice to give judgment “as quickly as possible”.

We will of course update you once we receive news of when the judgment will be handed down. Our legal team’s best estimate is two to three weeks from now. In the meantime, there will be another supporters’update looking at the various possible outcomes and what could happen next.

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