This morning, the People’s Challenge solicitors filed the 20 comb-bound copies of our Written Case required by the Supreme Court for next week’s hearing.The Case is herein electronic form, published first on Crowd Justice and distributed to our supporters.
The document runs to 39 pages and is supported by dozens of cited cases and other legal materials which form part of 35 volumes of material submitted to the Court’s Justices, a total of more than 14000 pages. The case is the most document-heavy the Supreme Court has ever dealt with.
Despite that, the work on the Written Case and the end product has needed to be disciplined and focused. We were under strict instructions from the Court’s President, Lord Neuberger, to avoid duplicating what the lawyers for other parties, especially Gina Miller were saying. Her team’s excellent Written Case is here. There have also been powerfully argued submissions filed by many others, including the Welsh and Scottish governments and the lawyers acting in the Northern Irish cases, Agnew, McCord and others. We will include links to these in a later update, subject to being permitted to publish them.
Notwithstanding this,the People’s Challenge case covers four of the most important issues that arise in the appeal.
First, it confronts head-on the Government’s argument that the Royal Prerogative can be used to take away rights (whether they are created by Acts of Parliament or common law) unless an Act of Parliament expressly prohibits that happening. This is the wrong legal starting point.The Government has to show that the Prerogative is available for use in the context of withdrawing from the EU – and it cannot.
This is backed up by the second part of the Written Case which reviews four centuries of case law on the use of the Prerogative in this context. That shows that there is no trace of the Courts allowing the law of the land to be altered by the Prerogative since the Bill of Rights prohibited it, but also that the judiciary have repeatedly put a stop to this being attempted by government bodies.
One graphic example comes from the 1931 case, King v The London County Council.There a local authority had granted a licence on ‘nod and a wink’terms that demonstrated its officers would not enforce a statute, the Sunday Observance Act, 1780. Lord Justice Scrutton observed:
“… One is rather tempted to inquire whether the Theatres Committee of the London County Council have ever heard of the Bill of Rights. James II lost his throne, and one of the causes of it was that he took upon himself to dispense with the operation of Acts of Parliament, without the consent of Parliament.”
The third part of the Case is backed up by a meticulously researched Annex that catalogues fundamental and non-replicable EU citizenship rights. It explains precisely why the Prerogative can never be used to extinguish or abrogate those rights because they are granted to UK Citizens by our Parliament.
Last, the Written Case tackles the argument that the European Communities Act 1972 itself somehow cut down Parliament’s future role in protecting UK citizens. That’s clearly wrong. Though the Government didn’t argue that the Parliament that passed the 1972 Act bound that of today (which would breach a long-established constitutional convention), the effect of its argument succeeding would be the same.
We should hear from the Court very soon about how much time our lead barrister, Helen Mountfield QC will have to develop these arguments during the hearing.