Postscript: what the People’s Challenge did next
We thought now would be a good time to let our original supporters know what we have been up to since the Supreme Court unequivocally upheld parliament’s sovereignty indecision-making on the UK’s withdrawal from the EU in its Miller judgment.
Incredibly, that was only a month ago. But a month is a very long time in politics. Hopes of parliamentary resistance to withdrawal have s...Read More >>
In a landmark decision the Divisional Court has upheld the challenge to the Government plan to use the Royal Prerogative to trigger Article 50 and take the UK out of the EU.
The judgment could not be clearer: the UK’s Parliament is the sovereign authority in terms of the decisions required following the Referendum on 23rd June. Parliament must control and supervise what happens next. If the Court’s judgment stands, Parliament can secure a more positive and less divisive way forward for the UK and appropriately protect UK citizens’ rights.
But the Government is pursuing an appeal to be heard in the Supreme Court in December in front of most, possibly all, of the current Supreme Court justices. Our legal team therefore needs to begin preparatory work now. The Divisional Court’s judgment – and Parliamentary sovereignty – now needs to be defended.
In the Supreme Court we will defend our position with the same vigour and commitment as we brought to bear when arguing the case in the Divisional Court. Doing so is critical. If the Government succeeds, all UK citizens can, and will, be stripped of EU Citizenship rights they have held for decades by executive action alone – a simple letter triggering Article 50 will be enough.
Your support is needed to make sure the People’s Challenge group can participate in the appeal and ensure a range of ordinary people’s voices are heard in support of Parliament.
We have therefore opened a new Crowd Justice campaign in order to raise the money required to fund this final, decisive stage of our challenge.
We have a first rate legal team working for fees that are lower than those of the Government’s lawyers. But a huge amount of work will be required, hence this new call for your support. We have set an initial target of £75,000 for work on detailed submissions, responding to those prepared by other parties, court fees and our contribution of court papers. We may need to raise more if the Government threatens us with having to pay its costs if its appeal succeeds and depending on the hearing length.
As we did before, we will provide regular updates on the progress of the preparations for the court hearing, the hearing itself and the funding campaign.
A number of challenges to the Government triggering Article 50 had been made in the courts, both here and in Northern Ireland.
At a hearing on 19th July the Court decided that the challenge brought by Ms Gina Miller, represented by Mischon de Reya, would be the lead case, but that a limited number of “concerned citizens” would be allowed to participate as interested parties.
These challenges were heard in the Divisional Court on 13th, 17th and 18th of October, you can find more details on the hearing on our original Crowd Justice campaign page through which we raised £170,000 to fund the People's Challenge.
What is at stake
I believe that the individual rights and benefits of ordinary British (UK) Citizens deserve special attention in addition to more general arguments about whether the Government can trigger the UK’s exit from the EU without an Act of Parliament.
We must make sure that the rights of ordinary UK Citizens are not, once again, ignored in the decisions about when, how and under what circumstances the UK should leave the EU.
This is the value, importance, impact that ordinary people's involvement in the challenge adds - making sure the court understands why it is unacceptable for our rights to be stripped away without an Act of Parliament.
This is why I and other UK citizens both in the UK and overseas are prepared to be named as interested parties in the challenge to the Government and not just rely on others to make the more general arguments. Our group includes my son Rob Pigney, 22, Paul Cartwright, 50, a Gibraltarian national who runs Brex-IN, Christopher Formaggia, 49, who lives in Wales, Fergal McFerran, a student leader, from Northern Ireland and Tahmid Chowdhury, 21, a London student.
For ordinary UK Citizens to have the chance to argue that their individual, personal rights and benefits justify that the timing and conditions of a Brexit should be decided by our democratically elected Parliament and not an appointed Government, crowdfunding is essential.
We also need to set aside money to cover a contribution to the Government’s legal costs, in case one is ordered by the Court.
Take Back Control
Make sure our Parliament retains its Sovereignty and that the Government respects that Sovereignty. This was a very important part of the referendum campaign that everybody should be able to agree on.
My Commitment to You
I will keep you informed regularly of the progress of both the CrowdJustice fundraising and the case. I will also make sure there are updates from the legal team for those who want more detail, that our legal arguments are published and I will press the Government and the Court to make its arguments public too.
Why am I doing this?
Whatever the opinions about the result of the referendum on 23rd June, I believe the result has thrust a far more important issue to the fore – Parliamentary Sovereignty.
This challenge is not being brought to reject or ignore the 17.1 million votes cast on 23rd June to change the status-quo and leave the EU.
It is being brought to ensure that Parliamentary Sovereignty is maintained and is respected by the Government of the day, to ensure that the rights of all 65 million UK Citizens are protected.
But ordinary people cannot afford to take on the Government on this important issue without crowdfunding support.
What are our individual, personal rights?
These rights include important personal freedoms:
anywhere in the EU, provided you are not a burden on the country you live in.
We all have these freedoms.
What are our personal protections and benefits?
In addition there are benefits and protections that give practical effect to the freedoms we enjoy including:
health care arrangements;
non-discrimination at work & about property ownership where you live;
voting rights in local elections in your country of residence.
These rights and protections apply to all UK Citizens and millions of UK Citizens take advantage of these rights every year.
Parliament has granted us these rights.
This is not about whether there would be or could be equivalent rights following a Brexit.
It is about the fact that those rights exist now, granted by Parliament to UK Citizens and why it must be Parliament, the Sovereign body in the UK, that decides when, how and under what conditions the UK withdraws from the EU and thus removes those rights.
It is for Parliament to decide whether to take our rights away.
Since the passing of the European Communities Act in 1972 the UK Parliament has granted us rights and privileges relating to the membership of first the EEC and now the EU.
If we do not challenge the appointed UK Executive, the Government, about its intention to roll back Acts of Parliament without an express mandate from and direct supervision by Parliament, we are allowing our Sovereign Parliament to be weakened and even usurped.
This Government wants to ignore Parliamentary process
Following the referendum this Government proposes ignoring the rest of the process that Parliament set in train when it passed the 2015 Referendum Act.
The current Government wants to use ancient (archaic) Royal Prerogative to trigger the process of the UK leaving the EU in the interest of the Government's sectional and party political interest.
By using the Royal Prerogative to trigger Article 50 of the Treaty of Lisbon this Government will be sweeping away rights at the stroke of a pen without the proper scrutiny and without a final decision being made by our Sovereign Parliament.
This is an act of constitutional vandalism.
The team who are arguing this case for us
Our barristers are all public and constitutional law specialists and, just as importantly, are fully committed to ensuring that ordinary members of the public have a say in this challenge. They are Helen Mountfield QC, Gerry Facenna QC, Tim Johnston and Jack Williams.
About the claimant
I am Grahame Pigney, one of many UK Citizens greatly concerned about the consequences of the Referendum result and the effects of a "Brexit". I am co-ordinating the People’s Challenge –a group of campaigners who are absolutely committed to ensuring that it is the UK's Parliament that decides on when, how and with what conditions the UK leaves the EU.
I happen to live in France but that is inconsequential in the context of the constitutional crisis we are facing. The UK Government has signalled its intent to ignore Parliamentary process and Sovereignty by triggering an exit from the EU, without a mandate from Parliament and without direct Parliamentary supervision.
Justice isn't free in the UK, for many people the cost is prohibitive. That is why ordinary people can rarely afford it; that is why we are asking you to support our crowdfunding campaign to pursue this case.
What's at stake - nothing less than Parliamentary sovereignty. We need to make sure we do not hand the Sovereignty of the UK to a self-appointed Government.
We have retained the leading firm Bindmans LLP who will instruct a specialist team to fight for our rights.
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Postscript: what the People’s Challenge did next
We thought now would be a good time to let our original supporters know what we have been up to since the Supreme Court unequivocally upheld parliament’s sovereignty indecision-making on the UK’s withdrawal from the EU in its Miller judgment.
Incredibly, that was only a month ago. But a month is a very long time in politics. Hopes of parliamentary resistance to withdrawal have since been repeatedly dashed, first by Labour MPs being whipped to support the EU(Notification of Withdrawal) Bill, then then by its passage through the Commons unamended and, more recently, with Labour’s shadow leader in the Lords, Angela Smith, disavowing any intention to‘pin pong’ the Bill between the two Houses. Teresa May was present as the Lords’ first debate opened, as if to watch her plans unfolding without hindrance.
But things are not quite so clear cut.
First, using funds raised so far in the Second People’s Challenge campaign, our team had discussions with, and briefed, MPs from all major parties who were interested in pressing for parliamentary control to be embedded in the Bill.
We also prepared a plain English guide to the EU citizenship rights at stake in the negotiations - rights that cannot be preserved by the Great Repeal Bill – and sent this to all MPs.
Our legal team also drafted an amendment which was tabled, albeit in a revised form, as NC99. A similar amendment, NC110, went to a vote and attracted significant support including from Tory rebels.
Though neither amendment was passed, the political support for them in the Commons will matter in the House of Lords which began its debates on the Bill on Monday and Tuesday this week. The Committee stage starts on Monday 27 February and will be completed on 1 March. The Reports stage and Third Reading will be on 7 March. If amendments are passed by the Lords, the Bill will be returned to the Commons so it can debate whether to accept them or not.
Although it is now clear the Bill will be passed, peers have proposed multiple amendments to protect the 2.9 million EU nationals currently resident in the UK regardless of the outcome of the withdrawal negotiations. Such protection would be both compassionate and pragmatic. Case-by-case decisions on the fate of millions are impractical. Acknowledging that resident EU nationals should remain here would encourage other EU states to reciprocate with their UK national residents. Without Miller,none of this would be up for debate.
Then there is the question of Parliament’s future role.
Ministers promised the Commons that they would “put the final deal that is agreed between the UK and the EU to a vote in both Houses” covering “not only the withdrawal arrangements but also the future relationship with the European Union”. Ministers “expect” this will happen “before the European Parliament debates and votes on the final agreement”.
But such promises can be broken and expectations go unfulfilled. And the constitutional problems are greater still. A vote against a resolution has no legal force.Nothing has been said about the consequences if Parliament rejects the terms of a negotiated ‘deal’, nor about its role if nothing is agreed. Many believe the risks of that are far greater than the White Paper suggests and it sets out no contingency plans.
Peers propose to tackle these problems indifferent ways with further amendments. Some would make ratification of any deal dependent on Parliamentary approval, or even a referendum. The most robust amendment proposed would require a future Act approving withdrawal with or without an agreement with the EU.
Our legal team wrote to all active peers last week explaining why such amendments are important. They are now working on a briefing for the Committee Stage debates.
But even if no amendments are made,Parliament can have a greater future role than Mrs May might like –if it chooses to embrace it.
That is the conclusion of a new legal opinion which we commissioned, published and sent and to every peer last week.
We approached our existing QCs – Helen Mountfield and Gerry Facenna - and three of the UK’s most respected EU lawyers – Sir David Edward, a former EU Court of Justice judge,Sir Francis Jacobs, that court’s former Advocate General, and Sir Jeremy Lever, an EU law pioneer regularly instructed by the Government when at the Bar. They were then asked to advise on what Article 50 means by “withdraw from the Union in accordance with its own constitutional requirements” and whether notification of intention to withdraw is reversible.
Their ‘Three Knights Opinion’ gives some hopeful answers.
First, notifying intention to withdraw is one thing, but Parliament must authorise actual withdrawal at a later date because, say the Opinion’s authors, “only Parliament that can give legal effect to the removal or conferral of individual rights that necessarily follow from that decision”. Authorisation must await any proposed deal because “meaningful Parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms”. And there must be another Act as “resolutions… cannot change domestic law, nor amend or abrogate existing rights”.
Suppose Parliament rejects the negotiated deal or there is none. At that point there will be “very strong arguments” that the Article 50 notification could be withdrawn. The UK’s constitutional requirements enshrine parliamentary sovereignty and “it would be incompatible with the European Union Treaties fora Member State to be forced out of the Union against its will, or contrary to its own constitutional requirements”.
The Opinion has had attention in the press,legal blogs and, most importantly in the Lords where it was mentioned by several peers. It is intended to be authoritative, but ultimately any dispute would need to be referred to the Court of Justice for a ruling. Whether that will be needed remains to be seen. So far Parliamentarians have supported the Government’s withdrawal plans.If minds change when the deal becomes clearer, the Opinion could well guide them towards making their sovereignty count when it will matter most.
In the meantime, we strongly believe the Bill can be improved. The parliamentary sovereignty we and others fought so hard for in Miller,thanks to your support, can be embedded in the Bill, putting beyond argument Parliament’s final say on the acceptability of any proposed deal, or of withdrawing from the EU without one.
The Second People’s Challenge campaign is all about making this a key issue in the ongoing debates and supporting parliamentarians who want to amend the Bill accordingly. If you have not yet supported it,please think about doing so now, at this critical time.
Final update – Q and A on costs
This will be the final update on our work to protect parliamentary sovereignty and ensure ordinary UK citizens’ rights were an important consideration in the Miller and Dos Santos case which succeeded in both the Divisional Court and Supreme Court.
Our Second People’s Challenge campaign remains open to help Parliament take control on Article 50. We will shortly be setting out our plans to support members of the House of Lords in amending the European Union (Notification of Withdrawal) Bill, so please consider supporting this important next step.
On 1 February 2017, the Government’s lawyers agreed what should happen about the Supreme Court stage costs, enabling our solicitors Bindmans LLP to give a final account to our supports as set out below.
How much money was raised via CrowdJustice?
The first People’s Challenge was funded with two Crowd Justice campaigns. £150,490 was pledged by 4326 people on the first and £170,550 was pledged by 4918 people on the second. Overall it was one of the most successful crowdfunded legal actions in the UK to date.
Didn’t the Government have to pay the costs of the People’s Challenge?
Yes, but only up to a relative small capped amount.
The People’s Challenge Group was an ‘interested party’ in the Miller and Dos Santos case. In judicial review cases like this one,interested parties generally meet their own legal costs and are not ordered to pay their opponents’ costs, but this can be varied if interested parties put arguments to the court that are different from those of the main parties (which we did in this case).
To avoid us having to raise enough money to cover an unknown and difficult-to-estimate amount of Government costs as well as our own, our solicitor negotiated two ‘reciprocal costs caps’ with the Government, i.e.maximum amounts each side could recover from the other, were agreed in relation to the Divisional and Supreme Court stage costs. They were £7,500 in the Divisional Court and £5,000 in the Supreme Court.
Under the agreement reached on 1 February 2017, the Government will pay the full amount up to both caps, so £12,500 inclusive of VAT.
Was the full amount raised via CrowdJustice paid over to the People’s Challenge solicitors?
No, because CrowdJustice deducts fees for its own support of all cases and there are credit card handling fees too. These are approximately 8% of the total raised. See here for details.
Did the People’s Challenge raise more than it needed once those deductions were made?
No. The case turned out to cost more than our legal team originally thought it would for a number of reasons.
In particular, in the Divisional Court:
we decided we would challenge the Government’s decision not to make its detailed defence public before the hearing and had to make an application to court to do so– this was successful and that meant everyone could see what the Government was arguing and consider its implications;
besides the claimants - Gina Miller and Deir Dos Santos - several groups of interested parties and interveners were involved at the Divisional Court stage and the Court directed that they should avoid presenting overlapping arguments at the hearing, which meant our legal team had to fully consider what they were saying and the legal materials they were relying on, then co-ordinate our lead barrister’s submissions with the other parties’ legal teams ;
our legal team also needed to keep abreast of, and deal with issues arising from the Belfast High Court proceedings, Agnew and others and McCord, including applying to that court to access some of the written submissions;
the length of the Divisional Courthearing was extended by a day and some court days were lengthened;and
extra written submissions were made by the Government, including after the hearing, which our legal team needed to consider and address.
Then, in the Supreme Court:
there was a dispute over whether we would remain interested parties and so entitled to participate –this was resolved in our favour;
the Government shifted the focus of its case onto a new argument based on the idea of ‘conduit statutes’ and that needed to be confronted;
we decided to expand the legal team to include an international law expert - Professor Robert McCorquodale - and another barrister – David Gregory –to help with the response and create our Annex on irreplaceable fundamental rights;
several new applications to intervene were made and our legal team had to consider and respond to them – ultimately four were permitted by the Court each of which had to be considered fully;
discussions and negotiations then took place between all the legal teams and the Court as to the amount of time each lead barrister should have, how overlaps could be avoided, and the order of the hearing;
the rulings in Agnew and others and McCord were appealed and questions about them were referred to the Supreme Court to deal with at the same time as Miller and Dos Santos – which meant more submissions and material to consider;
the length of the hearing was extended from the estimated two days to four;
a huge volume of material waspresented to the Supreme Court and much of it needed to beconsidered by our legal team – 13805 pages worth in Miller andDos Santos, 16890 in Agnew and others and McCord, thoughthere was overlap ; and
extra written submissions were made by the interveners during and following the hearing which our legal team needed to consider.
How much did the case cost, then?
To maximise the value of every CrowdJustice donation whilst ensuring there could be a an exceptional legal team of real experts, our barristers and solicitors agreed to work for rates less than those used by the Government (the latter have been unchanged for over ten years).
However, there was a huge amount of work undertaken.
In the Divisional Court, the team consisted of barristers Helen Mountfield QC and GerryFacenna QC, Tim Johnston and Jack Williams, along with John Halford of Bindmans LLP assisted by two trainees and a paralegal as needed, Darragh Mackin of Kevin R Winters who helped with Belfast issues.
The costs up to and including the Divisional Court judgment hearing were:
barristers’ fees of £91,674.29 inclusive of VAT;
solicitors’ fees of £96,032.88 inclusive of VAT; and
other costs to progress the case –court fees, copying in specialist libraries, travel and accommodation to enable claimants to attend hearings - £7,298.84 inclusive of VAT.
In the Supreme Court as mentioned above, the team was expanded to include international law expert Professor Robert McCorquodale and another barrister, David Gregory.
The costs after the Divisional Court judgment hearing on 3 November 2016, up to and including the Supreme Court hearing from 5 to 8 December 2016, were:
barristers’ fees of £107,485.08 inclusive of VAT;
solicitors’ fees of£67.954.25 inclusive of VAT; and
other costs to progress the case –court fees, copying in specialist libraries, travel and accommodation to enable claimants to attend hearings - £6,776.88 inclusive of VAT.
It follows that total costs of the Divisional Court and Supreme Court were £377,222.22 inclusive of VAT.
The total costs are more than the total of what was raised via CrowdJustice plus what the Government will pay, so what will happen about the shortfall?
Our barristers and Bindmans have reduced their fees to eliminate the shortfall.
Thank you for every penny donated. Whatever happens now in Parliament, this case made history by protecting Parliament’s authority against this and any future governments’ abuse of power.
There could be no People’s Challenge without you.
We hope to see further support for the Second People’s Challenge. Now that Parliament’s sovereignty has been reaffirmed, it’s time for it to be enforced as it was over 300 years ago.
Update – Progressing our work supporting parliamentary sovereignty and a thank you for your support
Over the weekend we reached our initial fundraising target for work to make the parliamentary sovereignty and accountability won back in the Miller case as meaningful as possible. This will enable us to complete work on the guide to the citizenship rights that are at stake at this critical time, publish and disseminate it, to seek legal advice on the safeguards Parliament can impose and support MPs who are interested in taking this forward.
We have been liaising with MPs, reviewing the amendments others have tabled and the legal team has been drafting an updated version of what we propose which will be available very soon in a further CrowdJustice update.
Thank you very much for helping us reach our first target and making this important work possible.
You can find the Second People's Challenge here
Chris, Fergal, Grahame, Paul, Rob and Tahmid
Taking action on the People’s Challenge amendment
The European Union (Notification of Withdrawal) Bill was published yesterday by the Government.
It has a simple, brutal purpose: to hand back to the Prime Minister all of the power she wrongly claimed she had during the Miller case, so she can proceed as before.
Although she promised Parliament a vote on the final negotiated withdrawal “deal” with the EU at last week’s Lancaster House speech, that means almost nothing, because a vote on a motion has no legal effect (as the Supreme Court noted in Miller) and because the notification she intends to give will be unqualified. If Parliament has concerns when it is told about the terms of any deal, it will find it hard to do much about them at that late stage if it is limited to a vote on a motion. And no deal is guaranteed.
The Bill does not need to be this way. An amendment has been urgently drafted by the People’s Challenge legal team (Helen Mountfield QC, Gerry Facenna QC, David Gregory, Jack Williams and John Halford) and is set out here along with its Explanatory Note.
This is not a wrecking amendment, nor one that ‘blocks Brexit’. It’s purpose is to enable Parliament to fulfil its constitutional role throughout the Article 50 withdrawal process; the role the Supreme Court confirmed in the Miller case in which the People’s Challenge group, was an interested party.
If it is supported by MPs amendment or peers and passed, the amendment ensure that Parliament authorises the Prime Minister to notify the United Kingdom’s intention to withdraw from the EU under Article 50(2) in a manner which:
- guarantees that it will be Parliament that must decide to approve the terms of any withdrawal agreement negotiated between the UK and the EU, in full knowledge by that time of what the effects of that agreement will be on the rights of UK nationals and businesses, and EU nationals in the UK; and
- makes provision for the possibility that no withdrawal agreement is concluded within two years of the date of notification (or such time as is extended by agreement with the European Council).
For these vital safeguards to be taken up, MPs and peers have to back the amendment.
We are encouraging People’s Challenge supporters to take action now to make that happen. We suggest that writing to MPs about it, or better still go and see them, and tell them:
- their reasons for supporting the People’s Challenge;
- why Parliament needs to stay in control, especially given the rights at stake; and
- why MPs should consider backing the People’s Challenge amendment.
You can find MP’s details here.
Please also consider supporting the Second People’s Challenge with a further, small donation, so we and the legal team can continue with our action plan at this critical time.
Thank you for your support.
There are White Papers and White Papers, but now at least we have a White Paper...
The Prime Minister, by announcing that there will be a White Paper on the article 50, seems to have vindicated the decision to set up the Second People's Challenge.
Whether that White Paper turns out to be sufficient for the purpose is up to our MPs.
The change in the PMs stance on the vote in Parliament has not been brought about by the Supreme Court's decision alone or by the shift in public opinion or even the hostility in Parliament but by the combination of the above that has turned the call for meaningful Parliamentary control into an irresistible force.
As Harriet Beecher Stowe said "Never give up, for that is just the place and time that the tide will turn."
In order to achieve this we need more shares, more tweets, re-tweets and more people backing our campaign. More importantly we need you to not give up, give in or settle for less than we are entitled to!
Victory in the Supreme Court – and what’s next for the Parliament and the People’s Challenge
As has already been widely reported, today an 8-3 majority of the Supreme Court upheld the Divisional Court decision, ruling. They stated:
“We cannot accept that a major change to UK constitutional arrangements can be achieved by a ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.”
Legal history has undoubtedly been made. Ordinary people’s voices have been heard on fundamental rights issues, thanks to the People’s Challenge. The majority of the Court said they had grappled with “some of the most important issues of law which judges have to decide”.
affirms that “because the EU Treaties apply as part of UK law, our domestic law will change as a result of the United Kingdom ceasing to be party to them, and rights enjoyed by UK residents granted through EU law will be affected”;
puts it beyond doubt that “some rights… will be lost on the United Kingdom withdrawing from the EU Treaties” and that these are, thanks to Acts of Parliament,fundamental domestic rights enjoyed by all UK nationals;
explains “complete withdrawal” will therefore “constitute as significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act”;
notes that the historical cases show it “is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law”;
firmly states “[i]t would beinconsistent with long-standing and fundamental principle for such afar-reaching change to the UK constitutional arrangements to bebrought about by ministerial decision or ministerial action alone.All the more so when the source in question was brought intoexistence by Parliament”; and
concludes tantalisingly, in its main section, with the indication that “what form such[authorising] legislation should take is entirely a matter for Parliament… the fact that Parliament may decide to content itself with a very brief statute is nothing to the point.”
Of course, Parliament now may also decide on legislation that is not the ‘one line Bill’its lead barrister James Eadie QC promised would be the outcome were the appeal to fail.
It will not need to seek the devolved administrations’ approval of the proposed legislation, however, because, said the Court:
“Within the United Kingdom, relations with the European Union, like other matters of foreign affairs, are reserved or excepted in the cases of Scotland and Northern Ireland, and are not devolved in the case of Wales”
and the Sewell Convention operated only as a political constraint. The Northern Ireland Act’s self determination provisions did not impact on the Brexit process directly.
In form, then, the judgment is a careful analysis of argument and precedent. But in substance it is no less than a restoration of Parliament to its rightful place as the ultimate decision-maker in our democracy.
What now? The Government will imminently publish an authorisation Bill. MPs will need to decide whether they are prepared to pass it unamended, or to be as courageous as our judges have been and take all necessary steps to ensure they remain in control of the Article 50 process including,critically, the final decision on whether the terms of withdrawal are acceptable.
We are determined to help them, hence the Second People’s Challenge.
There will be one final Update to this first campaign with a breakdown of the work we have done so far. Thank you again for everything you have done to make the People’s Challenge not only possible, but effective.
Article 50 ruling to be handed down on 24 January
The UK’s Supreme Court is to give its judgment in the ‘Brexit’ legal challenge at 9.30 AM on Tuesday 24 January.
The 11-Justice Court will decide whether to reject or allow the Government’s appeal against the ruling that it cannot use the Royal Prerogative to take the UK out of the EU by triggering Article 50 without Parliamentary approval in the form of an authorising Act. The Court is also likely to rule on arguments that the devolution arrangements with Scotland, Northern Ireland and Wales may impose additional safeguards, including the need for legislative consent motions.
The Divisional Court ruling that Parliamentary authorisation is required was won in the High Court by campaigners led by Gina Miller, Deir Dos Santos, the People’s Challenge and others. Bindmans’ Partner, John Halford, represents the People’s Challenge group which is supported by over 5000 CrowdJustice contributors.
He said today:
“Parliamentarians need to clear their diaries and make themselves ready. If the appeal is dismissed, as we hope, they will be able to insist on proper proposals, debate, accountability and meaningful control of every step the Government takes from now on in relation to its Brexit plans. British people should expect no less of their representatives.”
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.
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.
The work 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,
People's Challenge - Supreme Court report – Days 3 and 4
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.
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.
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.
- 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.
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.
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.
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 QC, Tim 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.
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.
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 cataloguing 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 law 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 parliamentarians would have thought ‘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 and in 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.
Speaking time from the Court and arguments from others
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, 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” has been published, but as this is a Private Member’s Bill, it is unlikely to make much progress in the Parliamentary process (note, an earlier version of this update suggested the Bill was Government supported, but that was based on an incorrect news report).
The People’s Challenge Written Case – fundamental citizenship rights protected by four hundred years of legal precedent
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 here in 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 devolution dimension, unpacking the Government’s appeal case and the new EEA challenge
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.
Publication of the Government’s Written Case in support of its appeal
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.
The path to the Supreme Court
John Halford, People’s Challenge solicitor
The UK’s Supreme Court was opened in 2009 replacing the Judicial Committee of the House of Lords as part of a package of constitutional reforms. It is housed in a grand building on Parliament Square facing the Houses of Parliament and a short walk from the Westminster-based ministries that include David Davis’ Department for Exiting the European Union. This geography is a permanent reminder that Parliamentarians make the law, the Court independently interprets and applies it and government must answer to both.
In just over two weeks, on 5 December, Mr Davis’ lawyers will argue that the invocation of Article 50 is a special case, that his powers to take this step do not come from Parliament, or any Act, but rather the Crown in the form of the Royal Prerogative. There will not be a new argument from them that the EU Referendum was binding and so a source of legal power. Nor will the government argue, its announcements indicate, that an Article 50 notification can be withdrawn if there is Parliamentary intervention at some later date. So far all the signs are that the government will maintain very similar arguments to those it presented to the Divisional Court.
It might be thought, then, that the Supreme Court hearing will be a premature remake of the drama that unfolded in Court 4 just a few weeks ago. But that would be wrong. There will be many differences, all calling for careful and hard work by the People’s Challenge legal team, the Claimants’ lawyers and others arguing the Divisional Court was right in holding Mr Davis has to seek power to invoke Article 50 from his fellow MPs in the House, rather than the Palace.
First, both the Scottish and Welsh governments have been given permission to ‘intervene’ to develop the devolution arguments originally raised by the People’s Challenge team from their own perspectives. Both will argue that the devolution arrangements are a further constitutional bulwark against invocation of Article 50 that only and Act of Parliament can dismantle. And, very appropriately, five key devolution questions that are particular to Northern Ireland have been referred to the Court by the Northern Irish Court of Appeal so that they can be considered at the same time as the appeal in Miller and others. The arguments on Northern Ireland will be presented by the Agnew and McCord legal teams and defended by the government. Northern Ireland’s Attorney General may also make an appearance.
Secondly, many other interventions are being attempted. Two have already been granted permission – those by Fair Deal for Expats (who were involved in the Divisional Court) and from Independent Workers Union of Great Britain. Decisions on others, including one from the pro-leave Lawyers for Britain group, are pending decisions on permission.
All of this will make for a busy hearing. The Court has yet to decide how long each party’s barristers will be allowed to speak – or whether interveners’ barristers as will have the opportunity to speak at all.
And this in turn makes the next step that needs to be taken in the case particularly important. That is for each party and permitted intervener to meticulously prepare their ‘written cases’ - the arguments developing their own positions in the light of what the Divisional Court held and responding to what others have to say.
Work on the People’s Challenge written case is already well underway and a first draft has been circulated amongst the team, enlarged today to include David Gregory who is undertaking further research and analysis on EU rights issues.
The government’s own Written Case has just been served and we will circulate it as soon as it is published. Ms Miller and Mr Dos Santos have until next Friday to file their Written Cases. We have until Tuesday 29 November to file our own.
Supporting these documents will be dozens of comb-bound volumes of statutes, cases, academic articles and other legal material which will also be produced in electronic form for the more technologically savvy. The Supreme Court justices judicial assistants will be looking at much of this material already.
We already know that the Supreme Court takes this case as seriously as it should. All 11 currently serving justices will hear it - an unprecedented step for the Court. One, Lady Hale, has spoken about the difficult and delicate issues it raises, prompting controversy and even suggestions that she should recuse herself. These are misplaced. Her comments simply identify some of the obvious challenges the case presents for the Court - and will present for Parliament if the appeal is dismissed. They are a very long way away from anything that would cause a fair-minded observer to believe she was biased.
Along with the parties, their lawyers, the Court’s Justices, press and the members of the public who arrive early enough to be admitted to the hearing, the path the Supreme Court is apparently also going to be walked by Nigel Farage and 100,000 supporters to “remind the Government, politicians and the establishment, including the court, that they cannot ignore the democratic vote of the people in the referendum.”
But this is a drama that has a class not of thousands, but millions, 65 million UK citizens to be precise – and many other EU nationals living here in the UK too. All eyes will be on the Court (which will broadcast proceedings live). Many will be hopeful that it will make sure the protection of their rights remains the responsibility of those sitting in Parliament just opposite the court, and is not handed over to Mr Davis and his civil servants down the road.
Target met - Thank you
We are delighted to report to supporters that yesterday morning we met our fundraising ‘stretch target’ and are confident that we have sufficient funds to cover the costs of our legal team in the Supreme Court, other expenses and to make a reasonable provision for a share of the Government’s legal costs being awarded against us personally, in the unlikely event that the appeal succeeds.
We are therefore closing the fundraising campaign and will only reopen it if something unforeseen happens which means we need more funds to champion UK Citizens’ rights in the case.
We will send out another update soon explaining the steps that need to be taken between now and the four-day hearing arranged in the Supreme Court from 5 December 2016 onwards, who is now involved and what our team is working on.
For now though, the most important thing is for us to offer our heartfelt thanks to everyone who has supported and sustained us so far in fighting for Parliamentary control and accountability.
Chris, Fergal, Grahame, Paul, Rob & Tahmid.
Developments in Parliament and the Supreme Court
We had planned to post a detailed update yesterday on our new Crowd Justice campaign page, but events have been very fast-moving and we’ve needed to take stock of them. This is just a snapshot with more detail and analysis to follow.
First, yesterday saw a Government statement and debate in the Commons about the Divisional Court’s decision. More on this to follow, but the key points to note are that the Government continues to accept, rightly, that the extent of its powers needs to be determined by the courts and that the courts’ decisions must be respected, however ‘disappointing’ they may be. This is important because a number of bloggers have continued to argue that the courts had no business in hearing the case at all.
The Government also appears to accept that, if the Royal Prerogative cannot lawfully be used to take the UK out of the EU, only an Act of Parliament will do.
Secondly, the Supreme Court has, unsurprisingly but very quickly, granted the Government permission to make its ‘leapfrog’ appeal which will be heard from 5 December 2016, most likely over the following four days. The Scottish and Welsh Governments both plan to intervene and Nicola Sturgeon has made it clear that she fully supports the Divisional Court decision.
There are also press reports that Leave.EU may intervene, though to do so it will need to persuade the Supreme Court it ought to be granted permission to make submissions in the public interest.
As far as we know, all the parties represented in the Divisional Court will continue to be involved. It is not yet clear whether the Northern Ireland High Court will allow a leapfrog appeal from Maguire J’s decision to be heard along with the Miller and others litigation.
On funding, we are now very close to our stretch target thanks to the sustained support over the last few days. Thank you again. We have asked the Government to agree a ‘reciprocal costs cap’ as was agreed in the Court below, so we should soon have certainty on how much we need to budget for to cover a share of Government costs in the highly unlikely event its appeal succeed.
An enormous thank you and this is where our Challenge is up to
Fantastically, we have made not only our initial target, but our first stretch target for the relaunched campaign, in just over 24 hours.
Our legal team now has really solid backing for the work they will need to do to defend yesterday’s victory against the Government’s appeal.
You have really staggered us with your support and generosity, all of which are a welcome change from the abuse and nonsense from some quarters.
We will be leaving the our new Crowd Justice campaign running with a revised stretch target of £150,000 which will almost certainly be sufficient for all work connected with the appeal and protection against government costs.
We want to ensure that we are in the very best position to protect people’s rights against the Government’s attempted power grab.
We will update you on Monday with a final budget, but every pledge will be used wisely and effectively to defend both individuals’ rights and Parliamentary Sovereignty.
Thank you once again.
We hit our first target!
Article 50 – today’s judgment in a nutshell
This update is from John Halford, Partner at Bindmans LLP
On 20 September 1610, Sir Edward Coke, the then Chief Justice, was asked to give a ruling on whether the King could use a Royal Proclamation to suspend an Act of Parliament that had authorised merchants’ trading activities in London. He identified the case as one "of great importance” because it concerned the accountability of “the king to the Commons". Coke then ruled that the Royal Prerogative could not be used in this way to override rights Parliament had granted.
This morning, 416 years later, Court 4 was packed with lawyers, journalists and members public many of were wondering whether Coke’s successor, the current Lord Chief Justice, Lord Thomas, was about to defend Parliamentary Sovereignty in a similarly courageous way. And minutes later he, the Master of the Rolls and Lord Justice Sales, did just that in a unanimous judgment. The ‘summary of the summary’ was simply this: “the most fundamental rule of the UK constitution is that parliament is sovereign”.
The Court went on to note that all parties in the case agreed the 2016 EU Referendum was advisory only and so had no effect on government powers or those of Parliament. The Referendum was important politically, of course, but had no effect in law. Instead, as revealed in the full judgment (R (Miller and Others) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin)), the Court’s focus was very much on the impact invoking Article 50 would have on ordinary peoples’ rights.
On that, the claimants, interested parties including the People’s Challenge group, and the interveners had also agreed with the Government that withdrawal from the EU by Article 50 would affect UK citizens’ rights that could not be replicated following UK departure from the EU (such as rights to vote, complain to the Commission or to seek a ruling from an EU institution) along with the rights they can exercise in other EU countries (such as free movement and access to health care). The Government had also accepted Article 50, once invoked, could not be reversed.
It followed, said the Court, that triggering Article 50 would inevitably strip away rights with no realistic prospect of Parliament restoring them. Critically, these were rights that had been granted through Acts of Parliament, starting with the European Communities Act 1972. It would be “surprising” if they could be removed by prerogative power, especially given the strong constitutional presumption that Parliament does not, unless it says so expressly, intend the government to have power to change the law of the land using the prerogative. That was a particularly strong presumption here given the importance and scale of the rights at issue. Drawing on a metaphor used by the People’s Challenge QC, Helen Mountfield, in her submissions, the Court observed, that having ‘switched on’ EU law in the UK using a series of statutes, it was implausible that Parliament had anticipated the government could use the Royal Prerogative to “switch it off again”. The proper interpretation of the 1972 Act, informed by constitutional principle, was that the Royal Prerogative had been excluded by incorporation of EU law into UK law.
The Court said it was not necessary to deal with the arguments raised about the Act of Union 1707 but, taking account of points made by the People’s Challenge in their submissions about the special position of devolved nations including Northern Ireland, cast doubt on last week’s judgment of Maguire J in the Belfast High Court. Maguire J will hear an application next week seeking permission to appeal from his own judgment direct to the Supreme Court.
And that is where the Miller case is also headed: Lord Thomas issued a certificate allowing a ‘leapfrog’ appeal from today’s ruling which will be heard by the Supreme Court early in December.
The People’s Challenge remains an interested party and so is entitled to be involved. The three good reasons for it to be involved in this litigation, backed by thousands of crowd funders, remain. So preparations are already underway to defend today’s judgement – and in turn Parliamentary sovereignty – at that hearing. But the importance of today’s ruling cannot be overstated. Lord Coke would be proud, not only of the judges that have followed in his footsteps, but that ordinary UK citizens were able to contribute to the case that made that possible.
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