People’s Challenge – Report from the High Court: day 2

First, thank you for continue to contribute to our funds throughout  the hearing. We are now well on the way to filling the war chest that will be needed for the Supreme Court.

Meanwhile, yesterday was another extended and intense court day, with the Court hearing submissions from the People’s Challenge Helen Mountfield QC, followed by Patrick Green QC for the expat interveners, Manjit Gill QC for a group of children and carers, then the Attorney General Jeremy Wright QC and ‘Treasury Devil’ James Eadie QC. The Independent’s Siobhan Fenton and Jolyon Maugham QC continued to live tweet (intriguingly, in Jolyon’s case, attracting Nicola Sturgeon as a follower). The full transcript is available for those who want the detail, but the highlights follow below.

The day began with this warning from the Lord Chief Justice:

The court was informed that the principal claimant in this case has been, again,subject to various emails and other communications. We have in this country a civilised way of dealing with things, and it is simply wholly wrong for people to be abusive of those who seek to come to the Queen’s courts. If this conduct continues, those who do it must appreciate that the full vigour of the law will be used to ensure that access to Her Majesty’s courts are freely available to everyone.”

Helen then pressed on with her submissions, explaining first that the People’s Challenge group agrees that the only prudent approach on the question of whether a Article 50 notification can be withdrawn, once given, is top proceed on the basis it cannot. She also submitted a note on the current state of the parallel Northern Ireland case, McCord, Agnew and others and on the possibility of it being ‘leapfrogged’ to join Ms Miller, Mr Dos Santos and the People’s Challenge in the Supreme Court. The note also gives further examples of individual rights that will be extinguished in two years following an Article 50 notification.

Helen then made submissions about the unique nature of EU law as a product of Parliamentary action, drawing on Lord Manse’s comments in the Pham case: “European law is part of domestic law because Parliament has so willed.”

Helen explained:

We say that a prerogative power to withdraw from the EU is implicitly ousted by the European Communities Act, and that is because Parliament has willed,by section 2 and 3 of that Act, that the rights, powers, liabilities,obligations and restrictions, which from time to time are created by,or arising under the treaties which Parliament has agreed to being ratified, and the remedies and procedures provided for by or under those treaties, are, without further enactment, to be given legal effect.”

adding that section 18 of the 2011 European Union Act was enacted to beyond speculation Parliament’s sovereignty over matters of recognition of EU law.

Helen then discussed the relationship between this statutory basis for EU Citizenship rights and the prerogative:

the reason why the Crown has retained the prerogative power to make treaties is because individuals cannot derive rights or be deprived of rights by them without intervention from Parliament.” 

In other words,whatever the Government does at an international law level, it cannot lawfully take away right Parliament has granted via the statute book.

Helen then turned to the People’s Challenge Bill of Rights arguments. That cornerstone of the British constitution states:

The pretended power of dispensing with laws or the execution of laws by regal authority as it had been assumed and exercised of late is illegal.”

The European Communities Act’s purpose would be illegally ‘disregarded’, she explained, if the Government could make it ineffective using the‘regal authority’ of the Prerogative to invoke Article 50. Helen then showed the court how this had been applied in the Case of Proclamations, where Henry IV unlawfully suspended the Foreign Merchants Trading Act of 1297, The New Zealand case of Fitzgerald v Muldoon and Lord Sumption’s comments about constitutional limitations on the exercise of state power at paragraph 241 of Nicklinson.

Helen then discussed the Act of Union with Scotland – another constitutional statute that would be undermined were Article 50 invoked without Parliamentary authority:

“… after the union between Scotland and England and the creation of a UK-wide Parliament, Scotland kept its independence with respect to its legal and religious systems. That was part of the deal. The Act therefore made special provision to protect the Scottish legal system, and to protect Scots law from alteration without proper Parliamentary consideration.

if the act of notifying withdrawal from the EU triggers the inevitable removal of public law rights from Scottish citizens and the inevitable alteration to private law rights in Scotland, then these rights cannot be preserved by Parliamentary legislation.”

Last, Helen discussed the devolution arrangements with Northern Ireland, Scotland and Wales which she described as:

the more recent but nonetheless delicate constitutional balance and relationships between UK government, the UK Parliament, and the governments and legislatures of the devolved nations.”

adding:

removing the elements of EU law which underpin the devolution statutes would remove limitations on the powers of the devolved legislatures and governments to interfere with citizens’ rights, it is equally true,and perhaps even more important, that removing EU law from that legal framework will take away competencies that are currently exercised by the devolved governments.”

The Government’s response to these and the other parties’ submissions began with the Attorney General’s submissions. He opened with this:

The defendant’s central submission is that the decision to trigger Article 50 of the treaty on European Union, and to notify that decision, are acts in the making and unmaking of treaties and are classic examples of the proper and well established use of the royal prerogative by the executive in that field left available to it by Parliament; and that the use of the prerogative to give effect to the will of the people as expressed in the referendum was wholly within the expectation of Parliament. We say that despite multiple opportunities for Parliament to do so, the prerogative has not been supplanted or eroded so as to preclude its exercise in the present circumstances.”

In other words, because Parliament has not expressly legislated to limit the use of the prerogative to invoke Article 50, the government believed it has free rein.

He then told the Court:

we do not argue that an Article 50 notice can be revoked, and we invite the court to proceed in this case on the basis that a notification under Article 50(2) is irrevocable… the defendant is also content to proceed on the basis that as a matter of firm policy, once given a notification will not in fact be withdrawn.”

So, once the ‘bullet’of Article 50 is fired, it will never return to the gun barrel.

The Attorney General then took the Court through the history of the 2015 Referendum Act,conceding that it did not, in itself, give the Government statutory authority to invoke Article 50 (“the government’s case is not that the 2015 Act provides the source of power for the government to give an Article 50 notification”).

He went on to submit that a cases, DeKeyser’s Hotel and LakerAirways, showed that only an express or strictly necessary restriction on the prerogative could limit it (note, our answer to these points is at paragraphs 30, 66 and 77 of our detailed written arguments).

Mr Eadie QC developed the Governments’ case in response to the:

“… primary argument, which is that it is not open to the executive to decide that the UK should withdraw from the European Union and commence the Article 50 procedure accordingly, because that would be to use the prerogative power in such a way as to affect or change current economic law, principally statute law.”

adding:

I will also address, but much more briefly because the Attorney has traversed this ground already to some extent, the alternative argument that it is a necessary implication from sections 1(2) and 1(3) of the 1972 Act, that rights enjoyed under section 2 of that Act cannot be substantially altered without prior Parliamentary authorisation.” 

Many of his submissions were surprising to the lawyers present and he was extensively questioned by all three judges about them. He argued:

“…we submit that the key question is whether Parliament has left the relevant power in the hands of the executive, notwithstanding that this exercise may,more or less directly, impact upon current statutory rights. So has Parliament left that power in the hands of the executive?”

So, even if statutory rights will be lost, if Parliament has not said expressly that the Government cannot make or withdraw from a treaty with that effect, it can do so freely.

On this, the Lord Chief Justice asked:

is it the case, and maybe you can come back to this at 2 o’clock, is it the case that you are saying that the Crown has the prerogative power to withdraw from a treaty even if that affects the rights that are accrued under domestic law?”

to which Mr Eadie responded:

Yes, is the short answer to that question.”

He went on to say what would happen to individuals’ rights: those that were part and parcel of EU membership (‘the rules of the club’) would be gone forever;those that had been incorporated into UK law through specific statutes, such as working time regulations would be preserved through the time being under the Great Repeal Bill and as for the remainder,such as EU freedom of movement rights:

the government,in the exercise of the acknowledged power, prerogative power to negotiate, might well take steps, and might well take steps which area great deal more significant than merely firing the starting gun in the course of those negotiations. It might decide in relation to a particular set of rights that currently exist, it doesn’t feel able in the negotiations to advance a position under which they would survive.”

Responding to this,Lord Justice Sales asked:

“… can I just check that I have understood the Crown’s submission about the effect on section 2(1) of the 1972 Act if theoretically all that happened was the giving of notice, the expiry of the two-year period and the United Kingdom exits the EU at the end of that two-year period. Am I right in thinking that the effect of that would be to say that there are no longer enforceable EU rights which have effect under section 2(1)?”

Mr Eadie’s candid response was:

Yes, you are.”

Today the barristers for the claimants and other parties will reply to these remarkable submissions once Jason Coppel QC has made submissions specifically about the People’s Challenge case.

We will post another court report tomorrow.

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