People’s Challenge – Supreme Court report: Day 2

As the video and transcripts of the Supreme Court hearing’s second day demonstrate, a packed court room is no guarantee of rapt attention in a case that involves dozens of technical points and bundle references as well as the most important constitutional principles.

But members of the public present and on line watchers who stayed with the hearing until 2.45PM were treated to a masterclass in advocacy by Lord Pannick QC, Gina Miller’s lead barrister.

Within minutes he had  broken the ‘silence of Parliament’ much relied upon by the Advocate General and MrEadie QC with  the barking of dangerous dogs, the clacking of lobster claws and the puttering of an 19th century steamboat engine.

The day began with further legal argument from James Eadie QC for the Government, however. As this is his client’s appeal, he will also be the last to speak on Thursday, replying to the arguments others have made. He started yesterday with more criticism of the Divisional Court’s approach.

It had been wrong, he said, to characterise what Parliament had done in 1972 as introducing “EU law into domestic law in such a way that this could not be undone by the exercise of prerogative power” as all rights were always “dependent”on our relationship with other European states. They were “inherently limited”. The Government could, and now can and will, “remove a swathe of those rights”. 

Mr Eadie was questioned about the relevance of the Great Repeal Bill, which the Government plans to use to preserve some EU rights in the UK. The Prime Minister’s statement on it might be though to be underpinned by“eternal optimism” he said, as he associated work would“involve years of entertainment to come”. He accepted Parliament’s future actions could not help interpret a 1972 Act,unsurprisingly.

Baroness Hale and Lord Sumption both pointed out that many rights could not be replicated, would not develop or be enforceable in the European Court – a point discussed in detail in the People’s Challenge Written Case Annex. Mr Eadie said “I accept that”.EU rights would be dealt with “by policy area”. Civil servants and ministers “will look at, I don’t know, farming… They are going to say: what are we going to do now about farming?”

None of this can be reassuring to those who currently rely on EU rights for their employment, business activities or where they live. The Justices were also troubled about his submissions on the Bill. “I think you’ve just given two diametrically opposed answers to the same question in the last five minutes”,  Lord Sumption observed. “We’ll have to look back through the transcripts and see which one we agree with then,” Lord Carnwath quipped.

In contrast to the Great Repeal Bill, Mr Eadie told the Court, the Bill that would be needed to authorise invocation of Article 50 if the Government loses its appeal would have “one line” adding:

[i]t may be that would lead to all sorts of parliamentary complications and possible additions and amendments and so on, but that is the solution”.

But what Parliament does with any one-line Bill is, of course, for it to decide.

Mr Eadie went on to argue that the Divisional Court had misinterpreted a series of cases to come up with a new, broad constitutional principle that “you cannot alter the law of the land” using the prerogative. It was:

uncontroversial that the prerogative cannot be used simply to countermand laws passed by Parliament… but one needs to exercise some caution, as we have already seen, in a variety of different and perhaps more or less subtle ways, and sometimes one can say it is altering a fact, and sometimes one can say it is doing something in a slightly special context, and context is all, of course… We also do not accept that there is any principle  corresponding to that identified by the divisional court, to the effect that the prerogative to make or withdraw from treaties cannot be exercised so as to have the effect of altering domestic law.”  

Mr Eadie showed the Court a single Canadian case, Turp, arguing this demonstrated withdrawal from an environmental treaty could happen despite the Canadian Parliament having passed an Act to give effect to it. But Lord Sumption pointed out:

presumably the Act giving effect to Kyoto would have been unaffected by the withdrawal from the treaty on the international plane.”

Mr Eadie then showed the Court a note on the EFTA agreement. Lord Mance asked:

Did the EFTA scheme involve any sort of directly effective rights such as is the subject of section 2 of the 1972 Act?”

Mr Eadie replied “Not in that way.”

The Justices did not appear to find either example particularly helpful as a guide to what the law requires in the special context of EU law, where rights are granted by statute.

Much was made in the Government’s Written Case of blogs by Professor John Finnis drawing an analogy with double taxation treaties. In the end, Mr Eadie decided to say little about them:

My Lords, I think given the time, what I would prefer to do if I may is leave double taxation as not least because of the incredible complexity of it, and it would take me quite some time to walk you through it, and I would probably be asked all sorts of answers I didn’t know the answer to.”

Mr Eadie was followed by Lord Keen QC, the Attorney General for Scotland, supporting the Government on Scottish, Welsh and Northern Irish issues, then John Larkin QC, Northern Ireland’s Attorney General who elaborated on the position in Northern Ireland.  There were no metaphorical fireworks in their arguments, simply a series of flat denials: “it’s perfectly clear that the matter of foreign relationships, foreign affairs and our relationship with the EU is not within the competence of the devolved legislatures”, so the Sewell Convention had no effect, even though it now had statutory force; the special responsibilities of the devolved governments for EU law did not stop the UK government from withdrawing from the EU; the British-Irish Agreement; the Belfast(Good Friday) Agreement had no legal force, they said; and in any case, those agreements, despite anticipating the UK and Ireland being in the EU, did not depend on that remaining so.

Before finishing his submissions and, oddly, walking out of the courtroom, Mr Larkin delivered an impassioned plea to the court not to permit“constitutional change” by thinking, as he himself sometimes had, that “a well placed litigation lever can move the world”. 

But this misses the point of the Article 50 case. The claimants, interested parties and most interveners are not attempting to change anything – they want to preserve Parliamentary sovereignty as it has been for hundreds of years.

This was one of the themes of Lord Pannick’s faultlessly delivered submissions which are well worth watching on the Supreme Court’s catchup video feed. Opening with “If the government is right…the 1972 European Communities Act has a lesser status than the Dangerous Dogs Act”,  he then told the Court he would be making seven overarching points.

First, the 2015 Referendum Act gives ministers no prerogative power to trigger Article 50. That step is not mentioned.

Secondly, while prerogative power is used to enter into new treaties such as the EU treaties,  it cannot be used to change the UK constitution.Developing this, he told the Court:

Now, it is of course rare to find examples of the treaty-making prerogative being used by ministers in an attempt to frustrate statutory or common law rights without authorisation from Parliament.  This is a rare phenomenon and it is rare because ministers normally recognise and respect the basic constitutional principles that are set out from the Case of Proclamations onwards, but there are examples in the books of ministers stepping over the line or the Crown stepping over the line.”

He then took the Court through the Parlement Belge and Walker v Baird cases about an impounded boat and lobster fishing regulation. Eve in these obscure contexts, the Courts had been careful to ensure the Government acted within its powers.

Thirdly, he submitted the Government must demonstrate Parliament has expressly handed over powers to ministers to overwrite legislation. It had not here.

Fourthly, Parliament did not intend the 1972 Act to create ministerial prerogative power to sweep away membership.

Fifthly, Ministers cannot use prerogative power to frustrate legislation.

Sixthly,  none of the European Union-related acts created over the last four decades give ministers power to trigger Article 50.

Seventhly, only an Act of Parliament can take away the rights linked to the EU that have been created since 1972 membership: “[i]t is so obvious, so basic… these are matters for Parliament.”

Lord Pannick spoke for much of his one hour and 45 minute slot uninterrupted, covering the first four of these points. On the scope of the prerogative, he said:

we for our part commend to the court the valuable historical analysis in Ms Mountfield’s written case… she will speak in due course”. 

The remaining three of Lord Pannick’s ‘magnificent seven’ arguments will be developed later this morning.

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