The People's Challenge

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 19^th 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.

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.

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.

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.

The Government faced an interesting choice in the aftermath of the Divisional Court’s unanimous and powerful ruling that it had no Royal Prerogative power to invoke Article 50.

Seeking a resolution or some other vote of both Houses would have been a non-starter (because only another statute could overwrite the 1972 European Communities Act), but one option was to humbly accept that it had misunderstood its powers and seek Parliament’s authority with a short Bill that could have been some way through the Parliamentary process by now.

It would, of course,have been for MPs to debate the contents of that Bill – and some of the trickier issues it would need to tackle, such as the position of the devolved governments (see below).

The alternative was to‘double down’ and take up the suggestion made by Lord Leveson at last July’s directions hearing of an appeal fast-tracked straight to the UK’s Supreme Court. This is, of course, what the Government did. It may now be wondering about the wisdom of that choice, even though it gave short shrift to a plea by senior Tory heavyweights to withdraw its appeal as the hearing approached.

One reason for that is that the devolution issues first raised by the People’s Challenge group were considered but not determined by the Divisional Court but cannot now be avoided.

That is partly because of the interventions of the Welsh and Scottish Governments, but even more importantly in terms of the scope of the appeal, the decisions of the Northern Irish courts to refer five questions of law to be decided at the same time as the Government’s Miller appeal:(1) does the Northern Ireland Act 1998 read together with the Belfast Agreement (also known as the Good Friday Agreement) and the British-Irish Agreement mean an Act of Parliament is required before Article 50 can be invoked?; (2) if so, is the consent of the Northern Ireland Assembly required first?; (3) if not, does the 1998 Act read together with the Belfast Agreement and the British-Irish Agreement operate as any form of restriction on the exercise of the prerogative?; (4) does section 75 of the 1998 Act prevent the prerogative power being exercised to invoke Article 50(2) before equality consequences are assessed; and (5) does the exercise of the prerogative power without the consent of the people of Northern Ireland impede section 1 of the 1998 Act – the constitutional cornerstone of the current devolution arrangements and the mechanism for any future referendum on a united Ireland?

These are serious and important question and similar issues arise in Scotland and Wales.They are important because EU law forms part of the mortar of the UK’s devolution arrangements – allowing rights to be enforced against the devolved governments and imposing EU obligations on them,none of which could be replicated in a Great Repeal Bill. To take one example, the British-Irish Agreement creates institutions responsible for implementing EU-funded cross-border initiatives which become meaningless if Northern Ireland is part of a state no longer bound by EU law. This doesn’t mean that Northern Ireland’s special circumstances and constitutional arrangements ‘block Brexit’. But it does mean that those arrangements have to be dismantled, very carefully, by Parliament.

The Government has yet to reveal its strategy to counter these arguments but, as noted in an earlier update, it has published its written arguments (the ‘Written Case’ or ‘Printed Case’ in Supreme Court-speak) in support of its appeal. There is no new argument that the 2015 Referendum Act empowers ministers in law, nor any attempt to persuade the court that the decision on Art 50 is so“polycentric” that the courts should not decide the case (the‘hands off’ argument that got nowhere in the Divisional Court).

Instead, the ‘new and improved’ argument is that “…acts of the Government in the exercise of the prerogative can alter domestic law”, that this is possible unless Parliament has created and clearly marked out statutory ‘no go’ areas for prerogative-wielding ministers. The European Communities Act created the opposite, the Government argues:it functions as a ‘conduit’ through which the products of international negotiations at an EU level can pass into UK law and be enjoyed by UK nationals. But the conduit works both ways, it argues:if the Government decides that an international agreement should be ended and acts accordingly – here by invoking Article 50 to leave the EU – rights may be taken away through the same ‘conduit’.So EU rights are not solid, reliable or permanent in a legal sense –they are ‘ambulatory’, always in flux and dependent on what the Government of the day agrees with other states “from time to time”.

This is a staggering proposition and has implications that go far beyond this case.

Suppose the government is right. EU citizenship rights enjoyed for decades, that most UK nationals were born with, can be stripped away without any Parliamentary involvement at all. The logic of the Government’s case is that this could have been done if there had been no EU Referendum, or even if majority of votes cast had been in favour of remaining.

But this argument does not, and cannot, stop at the stripping away of EU rights. Any right that was not protected by Parliamentary ‘stop’ signs in an Act of Parliament could be stripped away just as easily from UK citizens,from common law rights to privacy or property through to rights to access the courts and confidential legal advice. The implications are more than unsettling; they are horrifying.

Fortunately, there are many reasons why this is not the law which will be set out in the People’s Challenge case later today, but here are two of the most important.

First, UK citizens do not have to show that Parliament has created a reserved area where their and others’ EU rights can be enjoyed. The right starting point is to inquire whether the Government can show any precedent for use of the prerogative to dispense with citizens’ rights. As Lord Bingham said in Bancoult(No 2) “[w]hen the existence or effect of the royal prerogative is in question the courts must conduct an historical enquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances. ‘If it is law, it will be found in our books.  If it is not to be found there,it is not law’” The ‘books’ would have to be very old ones to support the Government’s true case because the Bill of Rights was drafted to protect against precisely this kind of prerogative-based power grab – as were the Scottish equivalents,the Acts of Union.

Secondly, the European Communities Act cannot plausibly be interpreted as an executive-empowering instrument rather than a rights-granting one.Parliament did not, in some express or implied way surrender to the Crown its own power to control the scope of the EU law, and indeed the EU Treaties, from time to time. The point of the Act was to take us into the European Communities (and later the Union), not to take us in or out as the executive pleases in a game of international hokey-kokey. And as for EU law being ‘ambulatory’, the People’s Challenge case will show that it is anything but: EU rights are fundamental and irreplaceable.

Meanwhile, it has been reported that the Government faces a further challenge,this time based on the EEA agreement which, it is said, will continued to apply to the UK even if Article 50 is invoked. That is very likely right in law – the UK is a party to the agreement in its own right as well as through the EU. But by itself it is unlikely to provide much of a safety net because, like the EU, the UK can give notice and leave. The Miller appeal will likely decide how that can be done. Whether it should leave the EEA will, if the appeal fails, be for Parliamentarians, not the Courts to decide.

As mentioned in Thursday’s update, the Government has agreed to make its Case available to the public. It can now be read here.

The Government’s Case maintains that an Article 50 notification cannot be withdrawn, adding that the Court can deal with the appeal without having to decide that issue definitively. It does not claim the Referendum was binding or gave it any new power to invoke Article 50, a point conceded during the Divisional Court hearing. There is also now no suggestion that the Courts lack jurisdiction to decide the case.

But there are many subtle shifts of emphasis and new points taken. Most significantly, an argument only raised briefly in the Divisional Court – that EU Citizenship rights are similar to those agreed at an international level in ‘double taxation’ treaties – is now front and centre. The Government argues the European Communities Act 1972 is an ‘ambulatory’ or ‘conduit’ Act of this kind. It says that, when the 1972 Act was passed, Parliament must have intended ministers could use the Royal Prerogative to negotiate and reach agreements with other European states that would grant rights to UK nationals – or strip them away altogether – without further Parliamentary authority or control and that section 2(1) of the Act would be the ‘conduit’ through which they became part of UK law, or were removed from it.

Our team are already analysing this and other points so they can be forcefully countered in our own case. A further update from them next week will unpack the Government’s Case in more detail.

Meanwhile, a group of Conservative MPs has argued that the Government should withdraw its appeal and submit to Parliamentary control and scrutiny. It seems most unlikely that this will happen –the written case shows the government is determined to make its last stand on its Royal Prerogative arguments.