Supreme Court announcement any day now

Rumour and speculation abound regarding the Supreme Court judgement later this month.

Apparently the Govt. has asked for and been refused advanced sight of the decision The reason, apparently, was so that it could put contingencies in place.

This does beg the question: why are there no contingencies in place already? Is the Govt. not ready for the Supreme Court decision? There are, after all, only two possibilities.

The court has announced that no one will get a sneak peak at its decision; so, quite rightly, there will be equal treatment for all from UK Justice.

The court has also said that the decision is anticipated before the end of January and 3 working days notice of the decision will be given.

Typically the President of the Supreme Court will then give a summary of the Court’s unanimous view or, if there is a majority decision, what that is and any dissents. We will issue a further update just as soon as we hear more from the Court.

Theresa May’s next big step seems to be her speech on Tuesday. It will be interesting to see whether in doing so she gives our Sovereign Parliament the respect to which it is entitled.

Posted in Article 50, brexit, Supreme Court | Tagged , ,

Christmas Greetings and update

As 2016 draws to a close and we await the Supreme Court’s confirmation that the UK’s Parliament is the Sovereign authority that Theresa May and her Government must respect and obey, our thoughts turn to the process by which our MPs will determine what is in the best interests of the UK and its citizens.

An overarching theme of the People’s Challenge has been that fundamental rights & benefits of ordinary citizens have been almost totally ignored during the debate on the UK’s membership of the EU and the (in)actions of the current self-appointed and autocratic government.

Even when those rights have been referred to, it has often been done using the phrase “freedom of movement” with little knowledge, much less explanation, of what that represents, in simple practical terms, to ordinary UK citizens.

The People’s Challenge has grounded its case in the fundamental principles of citizenship rights, not just the grand principles but also the more down to earth, everyday implication and implementation of those grand principles.

These rights have been in place for long enough that many people have enjoyed them their whole lives, and many others have forgotten how things were before we had them.

We are now planning out the next stage in our challenge to the UK Government and the Brexiteers and the protection of the fundamental rights and benefits we all have as citizens of the EU.

This will show that EU citizens have rights that extend far beyond the simple phrases “freedom of movement” and “right to remain”. Furthermore, it will demonstrate that for many people these rights, once lost because of withdrawal from the EU, could not be restored or replicated by actions of the UK Government.

It will involve, amongst other things, further legal work to produce a detailed document that can be turned into a definitive “plain English” guide to the fundamental rights enjoyed by all EU citizens.

We will also be assessing the extent to which these rights are protected as acquired rights under EU and International law so that we know what we can expect if the UK, through Government incompetence or intention, falls outside not only the EU but also the Single Market.

We are investigating other issues raised by Brexit and the government’s (in)actions, advice is being sought and we will keep you informed as things develop.

Now, however, “tis the season to be jolly”. We wish everyone a happy, healthy and peaceful Christmas.

As was once said “Where there is discord, may we bring harmony. Where there is error, may we bring truth. Where there is doubt, may we bring faith. And where there is despair, may we bring hope”

Have a wonderful festive season and see you again in January!

Very best wishes from us all,

Posted in 3rd Camapaign, Article 50, brexit | Tagged , ,

People’s Challenge – Supreme Court report – Days 3 and 4

This final report summarises the key developments in court on Wednesday and Thursday. The transcripts for both days are here and here.

Lord Pannick QC finished his submissions on Wednesday morning, covering the legality of the use of prerogative powers to frustrate legislation, the absence of any Ministerial power to trigger Article 50 in EU-related Acts of Parliament made after 1972 and the need for an Act, rather than any other Parliamentary step, such as a motion in both Houses, to give the authority the law demands.

He began with a guided tour of the 1972 European Communities Act, explaining how section 2 protected the Act against being repealed by implication through later Acts of Parliament, making ministerial action to set it aside very unlikely, and that section 3 would make no sense at all if the Government is right.  He then took the court to the European Parliamentary Elections Act 2002.  If the Government is correct, he said, Article 50 could be invoked nullifying every right it created despite the Act remaining on the statute book.  Similarly, the Communications Act 2003  imposed regulatory functions on Ofcom to enforce EU law which would be senseless were Article 50 invoked without Parliament first deciding how to deal with them. Parliament needed to be fully involved so that its intentions in passing such legislation were not frustrated.

Next, Lord Pannick discussed the De Keyser case. “Have I been mispronouncing that case all my adult life?” asked Lady Hale. “You say De Keyser, I say De Keyser quipped Lord Pannick, making the first joke in legal history to be reproduced for charity in T-shirt form.

“Whatever it is called” he continued “that is not the only type of case where the courts will impose limits on the exercise of prerogative power. Here, we submit there simply is no prerogative power to act under a treaty so as to defeat, nullify, frustrate statutory rights. That is one additional principle. Another principle is where the exercise of prerogative powers would frustrate the provision made by Parliament; that is ex parte Fire Brigades Union.”

Mr Eadie was therefore wrong, said Lord Pannick, to argue that the De Keyser case set the only limits on prerogative power. As for the argument that post-1972 legislation showed Parliament setting limits on the prerogative but deliberately choosing not to  in relation to Article 50, this was wrong too because the Green Paper for the Constitutional Reform and Governance Act 2010 showed  the Government’s intention had been only to replicate the Ponsonby Rule  and was mindful of further  legal protection where there are “treaties that require changes to UK law… the enactment of prior legislation which, of course, requires the full assent of Parliament”. Other statutory changes had been made to increase the powers of the then European assembly.

Lord Pannick and the Justices then debated the effect of the 2015 EU Referendum Act.  Might it be said that the 1972 Act had ‘clamped’ the Government’s power to use the prerogative to change law but the 2015 Act had “dismantled” that clamp, asked Lord Kerr. Lord Pannick said that must be wrong because the 2015 Act said nothing at all about empowering ministers, less still changing 40 years of constitutional arrangements, and would need very clear language to have that effect. What legal effect did it have then, Lord Neuberger wondered. Lady Hale beat Lord Pannick to the answer: “But the Act did have an effect.  It provided for the referendum.”

Last, Lord Pannick discussed what would need to happen were the court to dismiss the appeal – nothing short of express parliamentary authorisation for the invocation of article 50 would do and that would need to be in the form of an Act, not a resolution because only an Act can change the law.  Lord Sumption summarised this point neatly a little later: “resolutions are political acts, whereas legislation directly affects the law.” 

Dominic Chambers QC followed with submission for Mr Dos Santos, tracing the history of the parliamentary sovereignty principle, the way it dovetailed with EU law (“EU law rights solely take effect under English domestic law through the will of Parliament”) and the 2015 Act. It was identical in structure and purpose to the Act which set up the 1975 EEC referendum, that time, the Government had accepted Parliament would need to pass further legislation had there been a ‘leave’ majority.

Next  the court heard from QCs David Scoffield and Conan Lavery arguing the appeals brought against Mr Justice McGuire’s judgment in the McCord, Agnew and others case which  was decided a few days before  the Divisional Court gave judgement and came to a different conclusion. Mr Scoffield first argued that the Northern Ireland Act 1998, like the 1972 Act, was not neutral on the U.K.’s continued membership of the UK – it assumed that it would be a member and created rights and duties based on the assumption with the effect that it would need to be repealed, or substantially amended, before notice could be given under Article 50.  It was a “further conduit” for EU law to pass into UK law. Both the Good Friday Agreement and the British-Irish Agreement reinforced this, he said, as was recognised by Lord Bingham in the Robinson case.

Secondly, invocation of Article 50 without Parliamentary authority would “circumvent” the arrangements had been made with Northern Ireland for legislative consent motions endorsing future constitutional changes. In other words, the Government was attempting to use a prerogative shortcut when the lawful route involved consultation with the representatives of the people of Northern Ireland. Mr Lavery said he went even further. “It would be unconstitutional to withdraw from the EU without the consent of the people of Northern Ireland”, he submitted, because “being part of the EU was “part of a constitutional settlement” envisaged by the Good Friday agreement and there had been “a partial transfer of sovereignty”.

They were followed by the Lord Advocate of Scotland, James Wolffe QC, who argued “the power to change the laws of Scotland were given to parliament, and to those who parliament has authorised, and not to the Crown”. That sounded in the Claim of Right Act 1689 and the Act of Union of 1707. The Sewel Convention meant “that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament”. When it came to invocation of Article 50 “the United Kingdom has to make that decision in accordance with its constitutional requirements. I say that those constitutional requirements include an act of parliament” and that Act had to be preceded by a legislative consent motion in the Scottish Parliament. 

Mr Wolffe’s submissions were concluded on Thursday morning. He was followed by Richard Gordon QC for the Welsh Government who made an opening submission that the case was “elementary, a child of six, with respect, could understand this point”. Lord Carnwath was sceptical “your child analogy does not really work, because obviously the child is told he cannot go out in the garden, still has the power to go out in the garden, and indeed he may well disobey the constraint and do it.”

Mr Gordon then developed similar arguments to those of the Scottish Government. Consultation with the devolved administrations over certain decisions was “the only glue” holding together the UK constitution. By evading the, the Government was trying to “drive through” constitutional change of a “seismic nature”. But some Justices wondered what this added to the main Miller argument. Lord Mance asked “If we agree with Lord Pannick and reject Mr Eadie, your case is largely unnecessary, except insofar as you rely on the Sewel convention.” Mr Gordon replied “Yes. Yes.”

Next was People’s Challenge QC, Helen Mountfield, the first and only female advocate to speak in the case (though not the only barrister – Anneli Howard and Jess Simor QC are in the Miller and Dos Santos teams).

“My clients are a group of ordinary British citizens, and a Gibraltarian citizen.” Helen began.  “They are all people who will be affected, in very significant aspects of their lives, by a decision to leave the EU and the profound changes that this decision will make to the law of the United Kingdom and their rights as European citizens. They have been crowd-funded by many thousands of relatively small donations from private individuals.”

They were not asking the Court “to decide whether, in the light of the result of the referendum, the United Kingdom should leave or should not leave the EU.   Nor is it being asked to compel either the government, or Parliament, to do anything. All the Court is being asked to do is to consider whether, as a matter of law, an intended act of the Appellant, to notify the EU of a decision to leave on behalf of the UK, would be lawful in the absence of express statutory authority.”

By arguing that authority was not needed Mr Eadie “invites this court to find that ‘the Government can  trigger Article 50 in exercise of the royal prerogative, even though this will alter domestic law, because it has what he described as “untrammelled” or “unconstrained” prerogative power. We disagree. We reject the false assumption that the foreign relations prerogative extends to permit the government to dispense with national law.” 

Mr Eadie had chosen the wrong starting point for the legal analysis “because it conveniently by-passes the biggest hurdle which he faces in his appeal.” The right one was to ask “what are the limits if any of the prerogative power to make and unmake treaties?” 

The answer to that was that “there is no prerogative power to change or dispense with the law as it stands outside the prerogative, whether that pre-existing law is contained in the common law or in Acts of Parliament”. That was clear from the ‘historical inquiry’ Lord Bingham had said was needed in all case where prerogative power was in dispute. Mr Eadie had accepted that, Helen added, “but it is striking that despite positively commending that approach to you, Mr Eadie did not undertake any such enquiry, but put his claim for a wide untrammelled prerogative to change the law at the basis of general assertion.” 

The People’s Challenge team had undertaken the inquiry, she said, and the results were striking, Helen explained. The Case of Proclamations, the Bill of Rights, Article XVIII of the Union with Scotland Act 1706, the King v London County Council, Bancoult No 2., Nicklinson, Pretty, Fitzgerald v Muldoon, Fire Brigades Union and Hayden all show that the prerogative cannot generally be used to dispense with or suspend the law of the land. And there was nothing special about the foreign relations/treating making prerogative in this sense as the authorities in our Written Case demonstrated. There was an “orthodox” answer to the question the case raised. The historical cases gave the answer: the foreign relations prerogative cannot be used to change the law or to vary the sources of law which apply in the UK.

Further, though no judge had been asked to decide whether the UK could withdraw without an Act of Parliament, a series of them had said they assumed that was so. For example, in Blackburn Lord Denning had said “[i]f her Majesty’s Ministers sign this treaty and Parliament enacts provisions to implement it, I do not envisage that Parliament would afterwards go back on it and try to withdraw from it. But, if Parliament should do so, then I say we will consider that event when it happens. We will then say whether Parliament can lawfully do it or not.”

Helen’s second key submission was that, by triggering Article 50, the Government would in fact dispense with law, and remove EU law rights. The People’s Challenge group and those who support them “consider that their EU citizenship is a fundamental part of their identities and that, if they are to be deprived of it, their elected representatives in Parliament should, in law, be responsible for that”, she told the Court.

EU law, and the rights that flowed from citizenship “is part of domestic law so far as this court is concerned, ‘because Parliament has so willed’” as Lord Mance had said in the Pham case.

Yet the Government argued that by passing the 1972 Act “Parliament simply created an empty legal vessel, which the Minister could, at any time, fill or empty at will by using his foreign relations prerogative.” That, Helen submitted, “is not right on the language of the Act, and it is not right when you look at statutory intention.” It could not be squared with the EU Treaties themselves becoming a feature and source of law under the 1972 Act, its purpose or the very serious consequences for rights that could not be replicated if the Government was correct.

Helen finished her submission by responding to two questions the Justices had raised earlier in the week. First, could the 2015 EU Referendum Act in some way revive or legitimize use of a prerogative power put into abeyance by the 1972 Act? The answer was ‘no’. There was no power to do away with rights in the first place, but even if that was wrong, clear, and express statutory language was needed. The 1972 Act was a constitutional statute. It could not be overridden by assumptions or implications. To hold that the 2015 Act, by implication had such an effect would be an act of judicial legislation. As for the legislative arrangements for making a decision on whether another state could withdraw from the EU, these had nothing to do with the UK’s own withdrawal.

The People’s Challenge was seeking “to uphold the Divisional Court’s judgment not only for its determination of the issue before this court, but also because of the importance, in a democratic society, based on separation of powers and the rule of law”. The Court should dismiss the Government’s appeal.

There was an immediate and positive reaction to Helen’s submissions on social media and later from press commentators such as the Guardian’s John Crace.

Helen was followed by Manjit Gill QC speaking for non-EU national carers of EU national children. “This is no time to turn a flexible constitution into a slippery one and let go of its bedrock fundamentals”, he argued. Patrick Green QC for Fair Deal for Expats then argued that ministerial involvement in EU law making was illustrative of parliamentary sovereignty in action, not unrestrained use of the prerogative.

Lord Keen QC and James Eadie QC then mounted their last stand for the Government on devolution issues and the main issues in the case respectively. “We do not assert a power to repeal the Dangerous Dogs Act,” Mr Eadie began, taking the Court back to one of Lord Pannick’s first submissions about that legislation having greater constitutional status than EU law if the Government was right. But it backfired. Had the Dangerous Dogs Act being an EU directive, but identical, it could be disapplied using Article 50, he accepted. Mr Eadie’s closing gambit was to draw attention to Wednesday’s House of Commons resolution calling on the Government to give notification. This too failed to impress the Justices. “If the resolution had been enough for your purposes, then there would have been no need for this appeal” Lord Sumption shot back.

Lord Neuberger adjourned the case indicating that judgement would be forthcoming in the New Year as soon as possible.

Before then, there will be one further update discussing what could happen next, depending on the outcome.

Posted in Article 50, brexit, Supreme Court | Tagged , ,

Representing the People’s Challenge today…

The legal team has been working overnight on the submissions to be made to the Supreme Court today, so an update summarising yesterday’s and today’s hearing will follow tomorrow.

Our lead QC,  Helen Mountfield will speak from 12.00 noon for 45 minutes  can be watched live on line. Subject to responding to the Justices’ questions, her submissions will cover:

  • who the People’s Challenge group are and the  fact that they are crowd-supported;
  •  the importance of the legal principles which divide power between the limbs of the state, and in ensure that they do not illegitimately intrude onto one another’s territory;
  • the proper,  constitutional role of Judges;
  • why  the government argument for  “untrammelled”  and “unconstrained”  prerogative power begins at the wrong starting point –  conveniently bypassing the most significant legal hurdle the government has to jump over  which is to show that there is prerogative power to take away ordinary people’s statutory citizenship rights;
  • the right starting point is a historical inquiry to establish whether the prerogative has ever gone that far in modern times  – it has not,  as the cases show;
  • there are no cases that support the Government position  that the prerogative can be used to take away statutory rights –  and the only one they have relied on, McWhirter does not actually help them;
  • triggering Article 50 would  destroy citizenship rights –  rights which the courts have recognised as fundamental;
  •  they cannot be replaced as our Annex shows;
  • the 1972 European Communities Act  does not allow citizenship  rights to be taken away by executive action –  its purpose  and language clearly shows that  it was the means for granting those rights and making EU law a source of domestic law which all UK  nationals could benefit from – and enforce;
  • if the Government is right, the consequences do not stop with Article 50 –  it will be able to  strip away almost any right by  agreeing to do so in a treaty or withdrawing from a treaty;
  • the 2015 Referendum Act does not give the Government any authority to take this sort of step – in relation Brexit or otherwise – and  if that had been Parliament’s intention it would have said  in clear language of the kind used in the  Acts of Parliament which established  the alternative voting referendum and  future referendums on a united Ireland; and
  • the People’s Challenge Respondents ask the Supreme Court uphold the Divisional Court’s judgment  not only for its determination of the issue before this court, but also because of the importance, in a democratic society, based on separation of powers and the rule of law. EU citizenship is a fundamental part of our identity. If we are to be deprived of it, our elected representatives in Parliament should, in law, be responsible for that.
Posted in Article 50, brexit, Supreme Court | Tagged , ,

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.

Posted in Article 50, brexit, Supreme Court | Tagged , ,

People’s Challenge – Supreme Court report: Day 1

Yesterday was the first of four intense days of legal argument from the opposing legal teams in the Article 50 case. The hearing can be viewed on line and there has been insightful Twitter coverage from Jolyon Maugham QC, Schona Jolly, the Independent and live updates from the Guardian which will continue through the week. There was massive coverage in the press and other media from the 80 journalists at Court. Transcripts of every word spoken (including, unfortunately, what pass for jokes in legal circles) are available on line.

These People’s Challenge team reports have a different purpose, which is to provide our CrowdJustice supporters with a concise insider’s overview of how the arguments are developing and the Court’s reaction.

Lord Neuberger opened the hearing by making an Order to protect the identities of some of the parties (the AB children and carers) and address information relating to others, including the People’s Challenge group. He explained:

“We have made this order largely because various individuals have received threats of serious violence and unpleasant abuse in emails and other electronic communications. Threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law.  Anyone who communicates such threats or abuse should be aware that there are legal powers designed to ensure that access to the courts is available to everybody.”

He then welcomed those present in court and watching on line, acknowledging the public interest, but emphasising that the “wider political questions” surrounding Brexit were “not the subject of this appeal”. Rather it concerned: “legal issues and, as judges, our duty is to consider those issues impartially and decide the case according to law”. Every party to the case had accepted the 11 Justices were impartial and should not recuse themselves, he noted.

These themes were picked up in the opening of the Government’s case by the Attorney General, Jeremy Wright QC, who acknowledged the claim concerned “a clear question of law” that had been “properly bought” to court for determination. This marked a significant, and welcome, shift from the position taken by the Prime Minister some months ago.

Mr Wright then gave an outline of the Government’s case. There had been an electoral commitment to hold a referendum and to implement the result. The product was the 2015 EU Referendum Act, and a majority of those voting had voted to leave, something the Divisional Court had treated as “legally irrelevant”  when concluding the prerogative could not be used to bring about departure. It has been wrong to do so, he argued. There were “legitimate public expectations” to consider.

As to the prerogative, he said, this as not an ancient relic, but a contemporary legal necessity “essential to the effective conduct of public business” in a dualist system of law (where international legal obligations between states and those enforceable by citizens are separate). The prerogative “operates wholly in accordance with parliamentary sovereignty” because Parliament understands its utility, but will limit it when appropriate, albeit “sparingly”. This was a matter of practicality too:

“The need for the Government to maintain control over strategy, policy and operational matters in conducting our bilateral or multilateral international relationships is, we say, clear and compelling.”

Of course, none of these statements of principle are an answer to the People’s Challenge case: that Parliament has legislated to grant citizenship rights that cannot be overridden by the prerogative.

On this, Mr Wright said that Parliament had positively chosen to control the prerogative in relation to treaty notification and ratification using the Constitutional Reform and Governance Act 2010, but only up to a point. The controls it introduced did not prevent the invocation of Article 50, so Parliament must have chosen not to control that. Other opportunities to legislate and introduce controls had not been seized.

This became a major theme of the Government’s case throughout the day. According to Mr Wright and Mr Eadie QCs, Parliament’s ‘silence’ on the use of the use of the prerogative to invoke Article 50 meant it remained sovereign, but that sovereignty was manifesting itself in passive, mute acquiescence to the Government’s use of prerogative power in this context.

The People’s Challenge has a clear, principled answer to this: the Government’s case has the wrong legal starting point. It must show the foreign relations prerogative allows it to take away citizens’ statutory rights in the first place. And it cannot.

Mr Wright went on to make the first novel point of the Government’s case. Parliament, he said:

“… passed the 2015 Act in the clear knowledge, and expectation, that the process by which the exit from the EU would take place was set out in Article 50 of the Treaty on European Union. It knew what would happen when that process was begun, and it took no step, made no provision, imposed no constraint, to prevent the Government giving notice to do so in the usual exercise of prerogative power.”

But no evidence has been produced that Parliament, or even the Government, intended that the prerogative would be used to implement the 2015 Act if a majority voted leave.

“I say Parliament can stand up for itself”, Mr Wright concluded. The exercise of its sovereignty to remain silent and not control the Government’s use of the prerogative should be “respected”. 

James Eadie QC then rose to develop the Government’s appeal in detail. Unlike Mr Wright, he was frequently interrupted with penetrating questions, particularly from Lord Mance, Lord Sumption, Lord Carnwath and Lord Neuberger. Here are some highlights.

Opening his submissions, Mr Eadie descried the prerogative as “a power to act according to discretion for the public good” relying on the Burmah Oil case. “Suspicion of prerogative powers accompanied by judicial concern at their exercise” was misplaced. They are “essential”. 

A “conduit” allowing “transposition” of the fruits of negotiations at international level into UK law was also needed, he said, but that was the real function of the European Communities Act 1972. It created no rights at all.

Mr Eadie then gave other examples of three other “conduit” statutes. Lord Mance asked:

Does any of your three examples cater for a situation where the continued operation of domestic legal provisions is affected by whether or not the international position remains the same?”

Mr Eadie accepted none did. The 1972 Act was different in that sense.

Importantly, Lord Mance then asked whether a conduit statute could be used to take away rights completely, leaving none behind (i.e. the effect of invoking Article 50). Mr Eadie said that could happen. Other Justices questioned whether it really was his case that the substance of EU membership could be hollowed out in this way. Lord Mance explored the implications of Mr Eadie’s argument further:

“Mr Eadie, do you say that the European Communities Act 1972 was neutral as to whether the United Kingdom was a member of the European Communities?” 

to which Mr Eadie gave this startling reply:

“We say it proceeded on the fundamental assumption that that ultimate decision on the international plane was a matter for Government.”

In other words, membership of the European Community and then the European Union has, for 40 years, been a Governmental decision, not a Parliamentary one. This was no slip – Mr Eadie went on to describe the 1972 Act, one of the most debated in recent history when at bill stage, in this way:

“Parliament was… merely facilitating the membership, should the Government, in the exercise of its treaty prerogative, take the United Kingdom into the EEC.”

Mr Eadie’s remaining submissions focussed on the 1920 De Keyser’s Royal Hotel case, which involved seizure of property in wartime, arguing that it established a principle that the prerogative was unrestricted unless Parliament had imposed control “expressly or by necessary implication.”

Picking up a point from the People’s Challenge Written Case, Lord Sumption said:

“You surely have to ask: what are the limits if any of the prerogative power to make and unmake treaties?  If the position is that the prerogative power is only as broad as it is, because the assumption is being made that it does not alter domestic legal rights, then, you know, one may well arrive at a situation in which you just never get to the question of what the statute says, unless it is being suggested that it actually confers a prerogative right to change the law which would not otherwise exist.”

In other words, was the Government subsisting that the law of the land could be changed using the prerogative? Mr Eadie’s response was candid:

“Prerogative power in the field of making of treaties, ratification of treaties and withdrawal from treaties, is and always has been a general power, untrammelled by any such implication which can have…  impacts into domestic law through any or all of the various models that we have analysed our in our cases.” 

To sum up the Government’s case so far, then, prerogative power is untrammelled, the law of the land can be changed using it, Parliament was “merely” the facilitator of the exercise of that power when we joined the EEC and has now silently consented to its use to take away all UK citizens’ EU rights. There is something unsettlingly Orwellian about the Government’s case so far and there is nothing to suggest the Justices are persuaded.

Mr Eadie’s submissions continue this morning, before he hands over to Lord Keen QC, the Advocate General for Scotland, and John F Larkin QC, Attorney General for Northern Ireland. Both support the Government and will argue against the devolution arguments put by the Scottish and Welsh Governments and the Northern Irish appellants.

Posted in Article 50, brexit, Supreme Court | Tagged , ,

Britain’s ‘unwritten constitution’ and its highest court are put to the test as Article 50 hearing begins.

The UK’s 11-Justice Supreme Court will hear the Government open its appeal today against the ruling that it cannot use the Royal Prerogative to take the UK out of the EU by triggering Article 50. If the ruling stands, the process will be subject to parliamentary control and oversight and primary legislation will also need to cater for  the EU law rights and duties woven into the UK’s devolution arrangements.

Arriving at Court, the solicitor representing the crowd-funded People’s Challenge group, who are resisting the appeal alongside Gina Miller and Dier Dos Santos, said they were “confident” its Justices would apply the “clearest principle” of the unwritten constitution – “the empowerment of Parliament to protect citizens’ rights.”

Over 5000 people have supported the People’s Challenge group via CrowdJustice, a crowdfunding platform for public interest cases. The group’s members were formally recognised as ‘interested parties’ at a preliminary hearing last July, and participated to ensure ordinary people’s EU citizenship rights were fully taken into account by the judges dealing with the case.

They have made detailed written submissions arguing that Divisional Court’s ruling should stand complementing those of the Miller and Dos Santos teams and the intervening Scottish and Welsh Governments. The submissions are also backed by an Annex cataloguing the “fundamental and irreplaceable EU citizenship rights” at stake in the case.

The group consists of UK nationals Grahame and Rob Pigney who live in France, Paul Cartwright, a Gibraltarian national who runs Brex-IN, Christopher Formaggia who lives in Wales, Tahmid Chowdhury, a London student and Fergal McFerran, president of the NUS-USI based in Belfast.

Grahame Pigney said today:

“CrowdJustice has allowed us – ordinary UK Citizens and our supporters – to argue that our individual personal rights and benefits are so important that the timing and conditions of a Brexit should be decided by our democratically-elected Parliament rather than a self-appointed Government that wants to behave as if the Glorious Revolution of 1688 had never happened and the Bill of Rights was never written.”

John Halford of Bindmans LLP, the group’s solicitor, said:

“This case puts Britain’s unwritten constitution and its highest court to the test, but we are confident both will withstand it – the clearest principle of that constitution is the empowerment of Parliamentary sovereignty to protect citizens’ rights.”

Julia Salasky, CEO of CrowdJustice, said:

“Thousands of people have donated to the case, and therefore had the chance to take part in one of the most significant constitutional cases of our time.  Whatever the outcome of the Supreme Court appeal, it’s a victory for the justice system that The People’s Challenge is being represented – and we’re delighted that it was made possible via CrowdJustice.”

The People’s Challenge is represented by John Halford of Bindmans LLP. Our team of barristers is headed by Helen Mountfield QC plus Gerry Facenna QCTim Johnston and Jack Williams with David Gregory joining the team to assist with the work for the Supreme Court hearing.

There are others who are also challenging the Government; Gina Miller, Dier Dos Santos, George Birnie with yet more named as part of the respective challenges plus others who have joined as interveners now the Government has appealed to the Supreme Court.

Each of the participating groups, whether Claimants, Interested Parties or Interveners, have their own independent legal teams and they participate as such in court. Obviously there is common ground between the various parties, so the legal teams co-operate to avoid unnecessary repetition.

The People’s Challenge focuses on the threat the Government’s use of the archaic Royal Prerogative poses to the Citizenship rights of UK Citizens whether they are living in the UK or Overseas.

The People’s Challenge raised the funds to challenge the Government through the Crowd Justice website. Nearly 5,000 individuals pledged £170,500 so that we could argue case to protect people’s citizenship rights in the Divisional Court. We have raised another £150,500 in pledges from some 4300 individuals so as to be able to defend the Divisional Court’s decision against the Government’s appeal to the Supreme Court.

Posted in Article 50, People's Challenge, Supreme Court | Tagged , ,

Watching the Supreme Court and thanks to all our backers and supporters

Next week we see the penultimate stage in this challenge we have mounted on whether the Government has the authority to use ancient Royal Prerogative rights to trigger Article 50 and take the UK out of the EU.

The Supreme Court has taken the unprecedented step of assembling the 11 Supreme Court judges to hear the Government’s appeal against the Divisional Court’s decision that only the UK’s Parliament has the authority to trigger Article 50.

This decision is of enormous constitutional importance because it goes far beyond the comparatively narrow question of who can trigger Article 50.

The arguments that the Government are now making imply that the Government can remove or modify any rights conferred on UK citizens by Parliament or by common law.

Among those putting these arguments forward are MPs and Ministers who in the past have argued that the Government’s use of prerogative powers should be further constrained, so as to re-establish the authority of Parliament in the face of the creeping extension of executive powers by successive governments.

Our solicitor, John Halford, wrote a piece yesterday and has published it on the Bindmans blog – What those with power always want .

As expected, thousands of people will want to follow the Supreme Court hearing, far more than can be accommodated in the Supreme Court building on Parliament Square.

Fortunately, Supreme Court hearings are streamed on the web and it is possible to watch next week’s hearing in Court One via this page Court 1 – Supreme Court Live on the Supreme Court’s web site.

We have been overwhelmed and sustained by the enormous number of messages of support and help from our backers and supporters, as well as the generosity which has funded the challenge. I have not yet been able to respond to all these messages and hope to do so in the coming weeks.

Please rest assured that they have all been read and that the suggestions on how to build and reinforce the arguments we are making have all been taken into account.

Grahame Pigney on behalf of the People’s Challenge.

 

 

Posted in Article 50, brexit, Supreme Court | Tagged , ,

What those with power always want

Suppose the Government is right about the legal arguments it makes in support of its appeal. Then, unless there is some significant, but completely unforeseen, political development between now and 31 March 2017, a simple letter will be sent giving notification of the UK’s  intention to leave the EU.

The wording will not be elegant. No regret will be expressed.  And two years later, unless other EU states agree to a different outcome, UK citizens will lose their EU citizenship rights.  Parliament may, by then, have passed a Great Repeal Bill that mimics some of those rights in UK law,  but it cannot do so  comprehensively  or perfectly.  The rights that many UK nationals  depend on abroad to work, study, trade,  receive and provide services,  live with family members,  receive healthcare, retire and much besides will be gone in their current form.

In the Divisional Court,  the Government argued that these concerns were exaggerated. Its third QC, Jason Coppel, submitted that the People’s Challenge had:

“seriously overstated the effect of the decision to withdraw from the EU and the notification of that decision on the rights which are conferred on individuals by UK domestic law…. 

The proposition that I want to put to you first of all is that UK citizens have very few rights as EU citizens which are enjoyed as a result of the 1972 Act. Of those rights, none are directly affected by notification and as a matter of law, all could be preserved upon withdrawal, should Parliament so choose.” 

Our view is that this is simply wrong.  That is partly why the EU law specialists in our team, Gerry Facenna QC and David Gregory, produced the Annex to our Written Case cataloging EU citizenship rights and explaining their  fundamental and irreplaceable nature.

That document serves an even more  important purpose, however,  which is to show the Court  just how deep-rooted EU citizenship rights have become,  thanks to the series of Acts of Parliament passed so they could grow in the soil of England,  Scotland, Wales and Northern Ireland and UK territories overseas, like Gibraltar.

The consequences of the Government being right do not stop at a Brexit without Parliamentary control, oversight  or authority, however. To establish the Royal Prerogative can lawfully be used to invoke Article 50 means that the Government has to go much further than arguing it can be used for that purpose. Paragraph 16 of its written case makes this clear:

“… the true  position is that acts of the Government in the exercise of the prerogative can alter domestic law”. 

In other words, the law of the land is only as durable as the executive decides it should be.

The Government  says this is not absolute: Parliament can always protect against the being changed by “expressly or (possibly) by necessary implication” saying this cannot be done in an Act – see paragraph 64. But this  is hardly comforting. Very few Acts of Parliament expressly protect  the rights they create from interference  by the executive,  probably because few Parliamentarian  would have thought that ‘express protection’ was necessary,  given our constitutional arrangements. Protection that is ‘possibly by necessary implication’ is only as good as the legal arguments that can be presented  in favour of it.

Worse still, many of the rights UK citizens enjoy are not contained in statutes at all,  but in the common law. These include the right to procedurally fair decision-making, access to lawyers, protection for confidential legal advice, access to the courts generally  adding specific contexts such as individual liberty, protection from torture, privacy, freedom of religion, freedom of speech and assembly to protest and property rights.

If the Government is right each and every one of these rights only survives as long as it choses not to reach an international agreement to  do away with them.

Laid bare, the Government’s case  is not that it should enjoy prerogative power to  implement the result of the EU Referendum. It is that it should, and does, enjoy prerogative power to change any law unless  prohibited by an Act. That is a remarkable thing for a Government that includes MPs who once argued for cutting back, and strictly regulating, what was left of the Royal Prerogative so that citizens could have more confidence in Parliament’s role.

But maybe this should not be all that surprising. Those with power always want the same thing – more power. That is why Parliamentary democracy,  which balances  the exercise of power with checks and accountability,  however imperfectly,  is something well worth fighting for in the Supreme Court next week.

Posted in Article 50, brexit, Supreme Court | Tagged , ,

@ChallengeArt50 Others’ arguments, and from the Govt, a desperate move?#ParliamentisSovereign

 

We are delighted to confirm that, despite the tight court timetable and the increased number of represented parties now active in the case, the People’s Challenge lead QC, Helen Mountfield, is to be given 45 minutes of court time during the hearing to develop the rights-based arguments in our Written Case published yesterday. Helen’s speaking slot will be at 12 noon onwards on Thursday 8 December following on from the Scottish and Welsh Governments whose own Written Cases can now be found on line, here and here.

Also available today are the cases referred from the Northern Irish courts of Stephen Agnew and others and Raymond McCord, plus that of Northern Ireland’s Attorney General (who opposes them, though without any instructions from the Northern Irish Executive who he normally represents).

The Independent Workers Union of Great Britain has made submissions too, as have Lawyers for Britain Limited, but these will be dealt with in writing only. It is understood over 200 other individuals and bodies have applied to intervene, but none have been permitted to speak at the hearing. There will be a live video feed from the Supreme Court throughout the proceedings and a transcript published twice daily. We will say more about the hearing in a forthcoming update.

Meanwhile, despite David Davis’ indication that the Government would wait and see what the Court decided, his department today published a short Bill intended to create an Article 50-compatible “duty to notify the European Council by 31 March 2017 of the United Kingdom’s intention to withdraw from the European Union.”  This suggests Mr Davis’ confidence in his appeal succeeding has begun to evaporate as the arguments against him stack up. It remains to be seen whether this Bill will satisfy parliamentarians, can achieve its stated purpose when it says nothing at all about devolution arrangements, and be passed in its current form.

Posted in Article 50, brexit, Supreme Court | Tagged , ,