The People's Challenge

Yesterday was the third and final day in the High Court hearing, finishing the first stage of one of the most important constitutional cases ever heard.

Once again we want to thank each and every one o four 4918 supporters for making this happen. Without your support we would not have been able to bring this case and present Court with our important arguments. Special thanks also go to Jolyon Maugham QC,who conceived of a crowdfunded challenge to the government’s position, to our legal team for presenting the case so compellingly and to the Royal Courts of Justice staff for arranging live video feeds from the hearing room and transcripts every day so the public could follow the case closely. The complete set of transcripts,including that made yesterday, is available here.

What follows are some highlights from yesterday.

Most of the day was taken up with further submissions of the Government from Mr Jason Coppel QC followed by the replies of Lord Pannick QC for Gina Miller, Dominic Chambers QC for Mr Dos Santos, Helen Mountfield QC for the Peoples Challenge, Patrick Green QC for the expat interveners and Manjit Gill QC for a group of children and carers.

However,the day began with Mr James Eadie QC returning to Court to deal with questions the Court had asked on Monday.

Importantly,Mr Eadie continued to argue that there would be some Parliamentary involvement within the process of leaving the EU. He submitted that in line with the standard procedure for international treaties the agreement following the enactment of Article 50 the new treaty between the EU and the UK “will be subject to ratification process in the usual way”. In that it would likely require an Act of Parliament at ratification stage.

The main difficult with this submission is obvious. If there is an agreement with the remaining states (and there may not be) and if it results in a treaty which requires ratification (and it may not result in that kind of treaty) Parliament can only agree to or reject the treaty. The Article 50 process will be well underway and, two years from notification, we will automatically leave the EU, treaty or not, unless this period is extended.

The Court picked up this point straightaway, and questioned Mr Eadie about it at length. For example, the Lord Chief Justice asked:

“But could the United Kingdom and the European Union agree it didn’t need ratification? Is that what you mean?”

to which Mr Eadie replied “they could”.  

Mr Eadie then referred to the infamous ‘The Great Repeal Bill’ stating that it will:

“drag in where possible current EU law rights that are not already enshrined in domestic legislation in the first place… Parliament will then,again, necessarily, and inevitably, be involved in any further alteration to the newly domesticated rights.”

But these rights would not include those linked to the rules of the ‘EU club’, nor rights which Parliament had no power to grant, such as free movement rights.

Finally from Mr Eadie,there was an important concession: that the Court was legally entitled to rule on the issues in the case. On this the Lord Chief Justice commented “as far as I understand it, justiciability is no longer an issue.”

The Government then passed the baton to Mr Jason Coppel QC to make submissions in response to our own and the interveners’ arguments. Mr Coppel asserted that a right free movement right, to live in France:

“is not a right which is conferred by the European Communities Act”

Instead:

“They are [sic] a right against the government not to stop you from leaving the country, or not to deter you from leaving the country, by fining you, for example, and to allow you to come back to France once you have had enough of the good life.”

To this the Lord Chief Justice responded:

“I am sorry, I am slightly baffled. I don’t understand why the content of these rights are not controlled by Parliament.” 

This was because the Lord Chief Justice had understood free movement rights to have been granted to UK citizens by Parliament through the 1972 European Communities Act, and strengthened through EU Citizenship, as we have argued all along.

Lord Pannick then began his impressive reply by emphasising the key points in his case:

“The defendant accepts that a notification under Article 50(2) will inevitably result in the EU treaties no longer applying to this country [and that] the consequence of the treaties no longer applying is that the rights conferred under section 2(1) of the 1972 Act are stripped away. They are destroyed… we say notification will inevitably cause some statutory rights enacted by Parliament to be destroyed.”

He also stressed that

“…whether there is a new agreement [with the EU] is out of the hands of Parliament.” 

Helen developed this in her own reply using a thermostat analogy:

“Parliament has said we want control of this system of EU law. The executive can’t turn the heat up unless it has our approval, and the approval of the people in the direct referendum. It can’t turn the heat down unless it has our statutory approval. 

I say it is quite impossible to say that if they had been asked they would say: but the minister can turn the heating off all together and then take away the thermostat all on his own with no authority a tall.”

Mr Green’s submissions resulted in the biggest laugh of the day (yes,laughing is sometimes permitted in court!) He stated:

“My Lord, finally I turn to the submissions of my learned friend Mr Coppel about the nature and quality of the rights in issue before this court, which, my Lords, may I say were surprising in the sense that advocates use that word, and surprising in the sense that we were all surprised.

There is a fundamental reason for that. That is that they completely overlook the unique legal order on which I have already made some brief submissions, which is an absolute cornerstone of principle for the establishment of the Communities and then the Union, and to approach those questions, ignoring the nature of the unique legal order, is exactly the same as approaching the common law questions ignoring Parliamentary sovereignty.”

The High Court hearing was concluded, approximately two hours over time,with a promise from the Lord Chief Justice to give judgment “as quickly as possible”.

We will of course update you once we receive news of when the judgment will be handed down. Our legal team’s best estimate is two to three weeks from now. In the meantime, there will be another supporters’update looking at the various possible outcomes and what could happen next.

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.

Despite being the biggest courtroom in the Royal Courts of Justice, Court 4 was packed to capacity and beyond yesterday. Impressively, following a suggestion from our legal team,the court staff had arranged for live video links to screens elsewhere in the building. There was also live tweeting from Jolyon Maugham QC and Independent journalist, Siobhan Fenton and there has been some incisive discussion of the parties’ arguments in the NewLaw Journal and FinancialTimes. At the end of the day, a full transcript was published. Besides the many barristers instructed by those already involved in the case, there were QCs with ‘watching briefs’ present for the Scottish and Welsh Governments, suggesting they may want to step in on devolution issues when the case reaches the Supreme Court.  So far, only the People’s Challenge has raised these issues in Court.

What follows are some highlights of the first court day and a taster of what’s to come.

Lord Pannick QC opened for the lead claimant, Gina Miller, telling the court that the litigation:

“raises an issue of fundamental constitutional importance concerning the limits of the power of the executive. Can the defendant, on behalf of the government, lawfully use prerogative powers to give a notification under Article 50 of the treaty on European Union of this country’s intention to withdraw from the EU?”

He added that he was going to adopt many “valuable points” made in the skeleton arguments from other parties supporting this side of the argument.

Lord Pannick  then discussed the nature of Article 50, describing it as a “bullet” that, once fired, would reach its target sooner or later.

Next he covered the Referendum Act 2015 and the fact that the outcome does not bind Parliament:

“What is absent from the 2015 Act is any provision specifying what consequences, if any, should follow from the referendum result. The Act says nothing on that subject. And it is of interest that the Act says nothing on that subject, because when Parliament does wish to specify the consequences that should follow from a referendum, it says so.”

He then discussed he special nature of European law and the citizenship right created, drawing on a number of points made by the detailed written submissions from the People’s Challenge legal team. He explained why many EU rights would be gone forever, once Article 50 is invoked, regardless of the content of the Great Repeal Bill:

“It’s not possible for Parliament to re-enact a right to vote in the European Parliament. It is simply inconceivable. There is a statute which confers that right and Parliament simply cannot confer a right to vote for a member of the European Parliament. Inconceivable. That is one example. A second example is once we leave, assume, this is your Lordship’s question tome, assume that Working Time Directive, or other provisions are re-enacted, its quite impossible for Parliament to re -enact that my client or anybody else should have a process right, an absolutely crucial process right, to obtain a determination of the Court of Justice, in Luxembourg, as to the meaning, the scope and the meaning of that right. That will go forever. That is not possible. And it is also quite impossible for Parliament, of its own volition, to confer on my client, or anybody else, a right to free movement and all of the other fundamental rights throughout the community, free movement of services, goods, a person’s right of establishment. Parliament cannot do that of itself.”

These rights, we went on to explain, were made part of domestic law, by Parliament, under the European Communities Act 1972 and later legislation.

Lord Pannick then identified the long-established legal limits to prerogative powers, most importantly that:

“the principle of parliamentary sovereignty in the sense we are considering, is absolute. The executive cannot,without the consent of Parliament, override or take away domestic law rights which have been granted by Parliament. And the doctrine of parliamentary sovereignty is a legal doctrine. And it was described by Lord Bingham in R (Jackson) v The Attorney General, one of the foxhunting cases, as the bedrock of the constitution.”

This meant:

“…under the doctrine of parliamentary sovereignty, Parliament is the only body which, under the UK’s constitutional requirements, can take or authorise the decision to withdraw and notify under Article 50.”

He then  addressed the remaining points put against his own team’s written submissions in the Government’s skeleton argument .

Lord Pannick was followed by Dominic Chambers, Mr Dos Santos’ QC who took the Court on a legal history tour of the Royal Prerogative, Parliamentary Sovereignty and Referendums, taking in landmarks such as Dicey’s 1915 Introduction to the study of the law of the Constitution which emphasises that:

“Parliament … has, under the English constitution, the right to make or unmake any law whatever and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

That ‘setting aside’, Mr Chambers argued,would unlawfully happen by executive action, were Article 50 triggered by Ministers.

He brought the Court right up to date, though,showing them the House of Lords Constitution Committee Report on Referendums, the Government’s acceptance of their non-binding nature at page 12 of its response and the briefing to Parliament on the EU Referendum Bill 2016 which was highlighted in the People’s Challenge clarification note.

The day ended with the People’s Challenge lead barrister, Helen Mountfield QC opening her case. She told the Court she was instructed by:

“…an Englishman of Bangladeshi origin, an Irishman, two Scotsmen resident in France, a Welshman and a Gibraltarian, whose wife is Spanish, with family resident in Spain.And I make that opening observation not as a start to a poor joke,but because that illustrates the nature of the EU citizenship rights which they enjoy and they seek to enjoy, which include, for example,the right, if one resides abroad within the EU, to be accompanied by third country nationals, exercising derived rights out of the citizen’s directive. So they are all beneficiaries of the EU citizenship rights. And they are all concerned to ensure that there is proper democratic authority for and scrutiny of, Britain’s future relationship with Europe and they have been funded by over 4,400 people, who have supported them through a crowd funding initiative.”

On Monday, Helen will develop the case further on seven key points.

First, notification to the European Council of a binding decision to leave the EU will remove the directly applicable or effective EU citizenship rights of UK citizens after expiry of the notification period.

Secondly, once such a binding decision to leave the EU has been notified, the status of EU citizenship for UK citizens cannot be preserved or retained by Parliament – the Great Repeal Bill, for instance, cannot replace the EU citizenship rights every UK citizen will have lost.

Thirdly, directly applicable or effective EU citizenship rights have a fundamental constitutional character because they confer wide-ranging directly enforceable rights and remedies on EU citizens, as subjects of the EU legal order (and inform the content of the common law and the interpretation of statutes).

Fourthly, the availability of such individual citizens’ rights in the law of the UK is recognised by the courts because it has been mandated by legislation.

Fifthly, for a Minster of the Crown to take a step, which will make those rights unavailable without prior Parliamentary authority, dispenses with the law or the execution of the law and is contrary to the Bill of Rights 1688.

Sixthly, that step would be contrary to the Acts of Union with Scotland because it alters the public and private law rights of those subject to Scots law which arise from their EU citizenship, without Parliamentary authority.

Last, she will argue that even if  all of this were wring and the prerogative powers of the Crown were to extend to removing such rights in theory, for such powers to be used to remove rights which underpin the devolution statutes would be an unlawful exercise of the prerogative, because it would remove limitations on the powers of the devolved legislatures and assemblies to intrude upon the public and private law rights of EU citizens, which limitations underpin the constitutional settlement between the nations of the UK and the understanding of Parliament in passing the devolution legislation.

This short update is to bring people up to date with this week’s developments. Our legal team is also preparing a detailed Q and A about what exactly will happen during the trial which we will post very soon.

So far, we have filed detailed legal arguments about our case along with our own evidence about why invoking Article 50 without full Parliamentary scrutiny and an Act of Parliament authorising that step is unacceptable.

Since then, the Government and our lawyers have filed further written submissions which the Court will read ahead of next week’s Divisional Court trial. Our lawyers are now hard at work honing those arguments so they can be presented as effectively as possible in the time slot they will get.

Please do consider donating again now so we can reach our stretch target and pay them for their work. And, whether or not you can afford to make a further contribution, please do use social media and e mail, the ‘phone and post to encourage others to help out at this critical time.

The Government was asked by our lawyers whether it was willing to make its further submissions (known as a ‘skeleton argument’) public. We’re very pleased to report it did voluntarily so late yesterday afternoon. That document, which develops the ‘detailed grounds of resistance’ made public as a result of our application to the Court, is also available here.

In response, our legal team has filed a short clarification noteemphasising that there is no common ground in the case on the central question: whether a constitutionally lawful decision has been made to leave the EU.

They have also drawn the Court’s attention to the fact that Parliamentarians were briefed during the EU Referendum Bill debate that the Bill contained no

“requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented”

because

“this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions”.

The 2015 briefing echoed what Parliament was told when the very similar EEC Referendum Bill was debated in March 1975:

“Parliament… can never divest itself of its sovereignty. The referendum itself cannot be held without parliamentary approval of the necessary legislation. Nor, if the decision is to come out of the Community, could that decision be made effective without further legislation”.

That is exactly our position. And Mrs Thatcher, then Leader of the Opposition, agreed in the debate that this was legally right.

The trial opens in the Royal Courts of Justice next Thursday, 13th October. The hearing continues on the 17th and concludes on the 18th.

The constitution of the Court has yet to be confirmed, but it is being led by The Lord Chief Justice, Lord Thomas of Cwmgiedd. Judgment is likely to be forthcoming in two to three weeks, because the Courts anticipated there being a leapfrog appeal to the Supreme Court and a hearing of that appeal this year.

Thank you again for your help so far. You – our supporters – are making the People’s Challenge possible.

Grahame, Rob, Paul, Tahmid, Chris and Fergal