Summary
- Two justices suggested that tonight’s parliamentary motion, which asks MPs to “respect the wishes of the United Kingdom” may preclude the need for legislation. They hypothesised that it may seem strange to odd-lawyers if the will of parliament was expressed by a motion but legislation was still needed.
- Earlier, David Pannick QC said the motion was insufficient to give the government authority to trigger article 50t He said it could not alone give authority and could not override legislation.
- Withdrawing from the EU without the consent of the Northern Ireland people would be unconstitutional, the court heard. Ronan Lavery QC said there had been a transfer of sovereignty away from the UK parliament to the people of Northern Ireland under the devolution settlement.
- The Scottish government is not claiming a veto over the UK leaving the EU, the lord advocate for the Scottish government said. But James Wolfe QC insisted that its consent still matters because of the effects of withdrawal on its citizens.
-
A man has been arrested on suspicion of racially aggravated malicious communications over threats made online to Gina Miller, who Pannick is representing.
- The EU Referendum Act 2015 was of political, but not legal significance, the court heard. Pannick said it merely said there would be a referendum and made no comment on the division of power between parliament and the executive.
-
Pannick faced tough questioning on the legal effect of the 2015 act with the court’s president, Lord Neuberger, who suggested it may have been sufficient for the government to say it has ceded power to the people. “It would be a bit surprising if the referendum act and the referendum had no effect in law,” said Neuberger.
- Sections of primary legislation would make no sense if the UK left the EU and so parliament could not have intended to allow a secretary of state power to withdraw from the union, Pannick said.Parliamentary authorisation is needed to render statutes invalid, he said.
- The government’s case is based on “a fundamental misunderstanding of the doctrine of parliamentary sovereignty”, Dominic Chambers QC, representing Deir Tozetti Dos Santos, claimed. He said the appellant seeks to say there is a prerogative and restrictions must be placed on it, whereas the correct approach is to acknowledge that it is for parliament to cede powers that the executive can use the prerogative to nullify rights in domestic law.
They have been discussing the the Sewel convention, a rule introduced at the time of Scottish and Welsh devolution in 1999, which says both devolved parliaments “normally” have to approve any act of Westminster that affects their powers.
James Wolffe QC struggled to pin down the precise meaning of the word “normally’ when pressed.
The presence of so many senior law officers from different parts of the UK show that there is little constitutional consensus on key elements if the relationships between London, Edinburgh, Cardiff and Belfast.
Wolfe says there is plenty of evidence including statements by the UK government as to the importance of the Sewll convention.
Lord Mance says conventions are important but not legally binding.
The UK government decided to enshrine it into law because of its importance, answers Wolfe.
The court adjourns until 10.15 tomorrow. I will post a summary shortly.
At a constitutional level leaving the EU would limit the competence of the Scottish parliament and the competence of the Scottish government, Wolfe argues.
Now it’s James Wolfe QC, the lord advocate for the Scottish government.
He says when the UK was founded in 1707 it conferred the powers to change laws in Scotland to the crown rather than parliament.
English law like Scottish law precludes the government from changing the law of the land through use of the prerogative, says Wolfe.
He makes clear he is not asserting that the Scottish government has a veto on whether the UK leaves the EU but its consent for effects on its citizens must be sought and is of constitutional significance.
Here's the Scottish Government's written argument to the Supreme Court: https://t.co/Tg5EUWe0yc
— Dominic Casciani (@BBCDomC) December 7, 2016
Lavery says:
To the extent that the UK no longer has a written constitution we say that the Good Friday agreement forms part of the Northern Ireland constitution...
It would be very disturbing for the people of Northern Ireland to find that the terms agreed in the Northern Ireland agreement were not binding, had no constitutional basis.
The triggering of article 50 would impede the principle of self-determination.
Lavery sits down.
Staying on Northern Ireland, it is the turn of Ronan Lavery QC.
It would be unconstitutional to withdraw from the EU without the consent of the people of the Northern Ireland.
EU law is part of devolution settlement and there has been a transfer of sovereignty so that the people of Northern Ireland now have primacy, and not the UK parliament, over constitutional change, says Lavery.
Scoffield says even if breaking faith with some of the north-south agreements is a domestic matter, that is something that must be done by a legislative consent motion, not just an act of parliament.
If legislative consent is sought, it may be granted ..what we are asking the court to clarify is whether and how the convention is engaged.
With that, Scoffield sits down.
Harking back to the English civil war, David Scoffield QC suggests that the UK government’s “contention of its powers are, with respect, cavalier - perhaps in this respect with both a large ‘C’ and a small ‘c’.
Scoffield says the government seeks to use the dualist doctrine (whereby parliament and government are required to act to protect the government against parliament, whereas it exists to protect parliament and government.
Removal of EU law obligations materially alters a carefully-constructed devolution settlement
EU alters the devolution settlement in two ways, says Scoffield. The removal of EU law would allow the government to do things it has been precluded from doing by EU law.
The “hollowing out” of EU law would also remove some devolved powers and so could not be done by prerogative, Scoffield contends.
Scoffield accuses the government of being “cavalier” with its attempt to use the royal prerogative, given the effects he says it would have on the devolution settlement.
He refers to the Northern Ireland Act giving effect to the Belfast agreement, which involves co-operation with the Republic of Ireland.
Continued membership of the EU is an integral part of the act.
He says the government would be “driving a wedge” between Northern Ireland and the Republic of Ireland by triggering article 50.
Chambers has concluded. Next are David Scoffield QC and Ronan Lavery QC. They are representing two Northern Ireland applicants, Agnew and McCord.
9. N Ireland submissions are powerful & persuasive. They point to the very particular consequences for N Ireland. pic.twitter.com/nVoOofjsVF
— Schona Jolly (@WomaninHavana) December 4, 2016
They are discussing whether a resolution - or motion (like the one tonight) - would be sufficient to give the government the authority to trigger article 50.
Chambers says it would not be but the justices appear unconvinced.
Lord Carnwath suggests it would be strange if parliament expressed its will through a resolution but then there was still a need to go back to parliament for legislation to implement it.
Chambers suggests it might be “odd... to the man on the Clapham omnibus” but not to lawyers.
Two Justices (devils advocate perhaps) just suggested people would see it as "odd" if motions welcoming A50 weren't taken into account
— Faisal Islam (@faisalislam) December 7, 2016
Chambers is referring to a House of Lords briefing paper, considered in the high court case, from 3 June 2015.
He quotes from a passage saying the referendum bill does not contain any requirement for the UK government to implement the result of the referendum.
By contrast the referendum on the AV voting system would have automatically implemented a vote in favour without further legislation, he says.
When the referendum is referred to as advisory, what that means is it is not legally binding, continues Chambers.
Dominic Chambers QC, representing Deir Tozetti Dos Santos, is back with the case against the government.
There is nothing in the 2015 [European Union Referendum] act which could provide parliamentary authorisation whether its viewed through the prism of the prerogative or parliamentary sovereignty.
Summary
- Tonight’s parliamentary motion, which asks MPs to “respect the wishes of the United Kingdom” by agreeing to the government’s timetable for Brexit, is insufficient to give the government authority to trigger article 50, David Pannick QC told the court. He said a motion alone does not give authority and cannot override legislation.
- A man has been arrested on suspicion of racially aggravated malicious communications over threats made online to Gina Miller, who Pannick is representing.
- The EU Referendum Act 2015 was of political, but not legal significance, the court heard. Pannick said it merely said there would be a referendum and made no comment on the division of power between parliament and the executive.
-
Pannick tough questioning on the legal effect of the 2015 act with the court’s president, Lord Neuberger, who suggested it may have been sufficient for the government to say it has ceded power to the people. “It would be a bit surprising if the referendum act and the referendum had no effect in law,” said Neuberger.
- Sections of primary legislation would make no sense if the UK left the EU and so parliament could not have intended to allow a secretary of state power to withdraw from the union, Pannick said. Parliamentary authorisation is needed to render statutes invalid, he said.
-
The government’s case is based on “a fundamental misunderstanding of the doctrine of parliamentary sovereignty”, Dominic Chambers QC, representing Deir Tozetti Dos Santos, claimed. He said the appellant seeks to say there is a prerogative and restrictions must be placed on it, whereas the correct approach is to acknowledge that it is for parliament to cede powers that the executive can use the prerogative to nullify rights in domestic law.
Dominic Chambers QC says under the doctrine of parliamentary sovereignty, parliamentary authorisation is needed for the executive to nullify domestic rights.
He says the appellant’s approach, that the government doesn’t need authorisation, is “a fundamental misunderstanding of the doctrine of parliamentary sovereignty”.
Chambers argues the appellant is looking at the matter “the wrong way round” or “from the wrong end of the telescope”. He says James Eadie’s looks to see if there is a prerogative first and then says restrictions must be placed on it.
Chambers says this is incorrect, it is for parliament to cede the powers to use the prerogative to nullify rights in domestic law.
They adjourn for lunch until 2pm.
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Chambers says if the European treaties could not have had effect in domestic law without the European Communities Act it must follow that they could only be removed by parliament and not the executive.
It is for parliament to choose whether to repeal legislation enacting a treaty in domestic law.
The triggering of article 50 by the government alone will bypass parliament, says Chambers.
The rights are domestic law rights; that principle is fundamental to the EU, that the rights have to be brought into domestic law, he continues.
Chambers says the accession treaty to the EEC could not have been signed without parliamentary resolutions being passed because it would have been “contrary to the will of parliament”.
Everything thereon has to be seen through the prism of the 1972 Act.
Neuberger asks whether the government could have chosen not to ratify the treaty after the act was passed. Chambers said it would have been “unlawful” for the executive to go against the will of parliament.
Article 2 of the accession treaty dictated that it be ratified in accordance with the UK’s constitutional requirements. That was what led to the 1972 European Communities Act, says Chambers.
There exists no body or bodies that can declare void legislation enacted by parliament without the authorisation of parliament, Chambers continues.
The doctrine of parliamentary sovereignty is not a general principle, it is the fundamental constitutional principle upon which our legal system stands.
The doctrine of parliamentary sovereignty does not require “micro-managing” of the government’s powers on the international plain because it only impacts on actions which affect domestic rights, says Chambers.
The source of the EU laws which are being referred to here are the European Communities Act, which is domestic law, rather than EU law, he continues. He is arguing that therefore the government’s executive powers are restricted, because by triggering article 50 it would be impacting on rights in domestic law rather than those in EU law.
Now on his feet is Dominic Chambers QC, representing Deir Tozetti Dos Santos, a hairdresser who holds UK and European citizenship.
He begins on parliamentary sovereignty. He says under the English constitution no personal body or bodies can “make rules which overrule or derogate from an act or parliament”.
Lord Mance says the issue is whether the body’s actions do contravene parliament. Rights can be conditional or ambulatory, says Mance.
Here's a link to Dominic Chambers' arguments that are being presented to the Supreme Court https://t.co/8Npx9kEY2R
— Dominic Casciani (@BBCDomC) December 7, 2016
Pannick says tonight’s parliamentary motion, which asks MPs to “respect the wishes of the United Kingdom” by agreeing to the government’s timetable for Brexit, effectively agreeing that article 50 should be triggered before the end of May, is not sufficient to give the government authority.
A motion alone does not give authority and cannot override legislation.
Pannick concludes.
Pannick: Eadie's eloquence should not be allowed to obscure the basic constitutional principles his arguments seek to violate.
— Schona Jolly (@WomaninHavana) December 7, 2016
Sits down.
Pannick continues:
I say the 2015 act is an act of political significance. It is entirely neutral on the matter before the court.
Lady Hale says the act “undoubtedly had an effect, the question is whether the result had an effect”.
Pannick says James Eadie QC’s argument argument for the government is that the government’s power to notify article 50 is not explicitly restricted. Pannick says of course it is not because it is “a fundamental constitutional principle” that the government cannot nullify statutory rights.
A little bit of forethought by MPs and ministers when passing the 2015 Referendum Act, and this case would not have been possible.
— Law and policy (@Law_and_policy) December 7, 2016
These are intense exchanges, probably the toughest grilling Pannick has faced so far in this case.
Pannick says it cannot be said that the 2015 European Union Referendum Act act clearly removes the inhibition on the ability of the executive to nullify statutory rights.
Untouched by the 2015 act is the legal division of responsibility between the government and parliament, he claims. No one has presented any evidence that the division is altered, Pannick continues.
He does not agree that the political significance of the act, which he acknowledges, impacts upon the matters before the court.
For the court to infer matters that are not in the act when they are matters of constitutional importance would be wrong ...
There is no language in the 2015 act which comes close to supporting the contention which is being put forward by the appellant.
Updated
Lord Pannick running into stronger judicial resistance when he comes to consider the 2015 Referendum legislation.
“It would be a bit surprising if the referendum act and the referendum had no effect in law,” Lord Neuberger suggests.
The act may have been enough for the government to say it has ceded power to the people, the president of the court comments.
Updated
Some breaking news related to the case.
A 55-year-old man has been arrested on suspicion of racially aggravated malicious communications over threats made online to Gina Miller, 51, the businesswoman behind the Brexit legal challenge.
Pannick moves onto the post 1972 legislation and “the limitation placed on the crown’s power to act on the international plain”.
There was and is no prerogative power to take action on the international plain to take action to nullify the effect of the 1972 act, he argues.
The act is simply inconsistent with any prerogative power to set it aside.
Lady Hale suggests it wouldn’t be a prerogative power if it was in statute.
Pannick says James Eadie QC’s argument for the government is that later legislation was confirmatory of the government’s prerogative power.
He continues, saying there simply has never been a prerogative power to use treaty-making powers “to nullify that which parliament has enacted”.
Lord Sumption's wonderful Team GB Olympic tie blatantly displays the Union Flag. What will @MailOnline make of it!! #SupremeCourt #Brexit pic.twitter.com/zYCrCP6VnH
— Gavin John Adams (@gavinjohnadams) December 7, 2016
There is a moment of levity as the justices and Pannick share a joke about the pronunciation of the De Keyser case, one of the authorities discussed by both sides.
Pannick has been pronouncing it De Kay-ser and the court’s deputy president Lady Hale asks if she has been pronouncing it wrong her whole life. She has been saying De Kee-ser.
Another justice suggests it is De Ki-ser.
Pannick says
You say De Kee-ser, I say De Kay-ser.
A joke for lawyers, I think.
Pannick says he will change his pronunciation to tie in with Hale’s but soon reverts to how he was saying it before.
Pannick says:
It’s no answer for the appellant to say of course these rights lapse when we leave the club.
Parliament has adopted sections in primary legislation such as the Communications Act and thousands of other statutes that proceed on the basis that the UK is a member of the EU and these sections would make no sense if the UK were not a member of the EU, continues Pannick.
It is impossible to understand as a matter of law how the secretary of state can claim a prerogative power to notify.
Parliamentary authorisation is needed to render statutes invalid.
Summary
“That way madness can be said to lie,” Lord Neuberger, president of the supreme court, remarks when faced with the prospect of analysing everything ever said by ministers in parliament about EU legislation.
The court may already have a mountain of 33,840 pages of evidence and submissions to read. Clearly there are some limits.
#SupremeCourt President Neuberger: 'One doesn't want to look at everything said on the floor of the House of Commons; that way madness lies'
— Alastair Stewart (@alstewitn) December 7, 2016
Updated
Pannick justifying referring to David Lidington in 2015 EU referendum bill debate.. some sympathy from Justices pic.twitter.com/ytb9ClNRXA
— Faisal Islam (@faisalislam) December 7, 2016
Pannick resumes on the fourth point of his seven arguments against the government’s cases, which is that he 1972 European Communities Act contains no clear statement that executive does have a prerogative power to nullify a statutory scheme.
He says that the ECA was created so that it would have precedence over subsequent legislation, therefore:
Parliament is most unlikely to have intended that the scheme it was creating could be set aside by a minister.
Pannick talks about his reference to Hansard (parliamentary transcripts) yesterday when he highlighted comments by minister for Europe David Lidington rejecting an amendment to give legal force to the referendum during a debate on the 2015 European Union Referendum Act.
He accepts that there is historical precedent saying Hansard should not be cited in court to ascertain the purpose of a bill and that they should look first at what the legislation actually says but Pannick says that if the court can look at what ministers said to the public, it can look at what they said in parliament.
Following Lord Pannick’s persuasive opening on behalf of Gina Miller on Tuesday, Betfair has increased the likelihood of the supreme court rejecting the government’s appeal. The probability of the 11 justices finding for Miller and upholding parliamentary sovereignty has risen from 75% to 83% according to the online betting market’s assessment.
Karen Doyle, an organiser for the Movement for Justice, has been outside the supreme court for every day of the hearing with a placard opposing Brexit and racism. She explained:
We are here to stop Brexit. We are going beyond what the judges are doing. We support by delay or frustration which subjects government plans to greater scrutiny.
The immigrants’ rights organisation, founded in the 1990s, normally holds protests outside detention centres such as Yarlswood.
There have been more Europhiles than Brexiteers demonstrating outside the court in Westminster. Dolye said:
We have had some intimidation from an offshoot of the English Defence League. People coming up close putting cameras in our face and shouting ‘You’re the fascists’.
The one aspect of the supreme court hearing that disturbs Doyle is the predominance of old, white men in the courtroom.
Updated
There was plenty of praise for Pannick’s performance from other lawyers as well.
Never watched Pannick in action before. Boy, is he good.
— Gavin Phillipson (@Prof_Phillipson) December 6, 2016
The thing about Lord Pannick is that he could also argue the other side's case and do that brilliantly. Watch and learn. #LordPannick
— Mark Lewis (@MLewisLawyer) December 6, 2016
For newcomers watching appellate advocacy for the first time it is staggeringly difficult to speak as simply as Lord Pannick QC.
— Max Hardy (@maxbarrister) December 6, 2016
But lawyer and writer David Allen Green, in the FT, assures people that for all Pannick’s brilliance, it is unlikely to decide the case:
The appearance was of the government case being carefully and eloquently dismantled. One should not be too dazzled by the performance: the supreme court justices do not lack the intellectual self-confidence to disagree with Lord Pannick. Indeed, one of their number — Lord Sumption — was as celebrated and powerful a barrister as Lord Pannick. Although heartening for those wanting the government to lose the appeal to watch, the advocacy skills of Lord Pannick are likely to only make any marginal difference, if any.
There was easy meat for headline and sketch writers yesterday, with respect to the lawyer opening the case against the government - it won’t surprise you that “Pannick attack” was used more than once.
Sketch writers are a notoriously cynical lot but there was also recognition of an impressive performance by Pannick.
The Guardian’s John Crace wrote:
With the government’s case – what there was of it – complete, the rest of the afternoon was handed over to Gina Miller’s barrister, Lord Pannick. Seldom has a man been less well named. Pannick exudes a sense of calm and has the uncanny ability to make you think you understand legal doublespeak even when you don’t.
A Pannick attack is a thing of zen-like beauty. He doesn’t need to shuffle his papers because he never forgets a reference. Nor does he ever miss a beat. In his hands, a legal submission is more a cosy bedside story than adversarial confrontation.
“If the government is right,” he began, “the 1972 European Communities Act has a lesser status than the Dangerous Dogs Act.”
You could see the tension ease away from the 11 justices. They knew they were safe in Pannick’s hands and whereas their line of questioning to the government’s barristers had been provocative and sharp, they now turned into gentle pussycats.
There was also praise from the Telegraph’s Michael Deacon:
Lord Pannick is renowned as a superstar of the courtroom. You might not necessarily guess it, to look at him. Outwardly, he seems harmless, with his genial rubbery features, his brow furrowed in gentle concern, and his voice rising and failing in a kind of Sunday school sing-song. His manner is unhurried, unassuming, unaggressive.
Yet he chomped through the Government’s case like a shark. He set out, with effortless clarity, seven reasons why the Government couldn’t just invoke Article 50 whenever it felt like it.
The Mail’s Quentin Letts seemed less enamoured with Pannick, although he thought he had the justices eating out of his hand:
The justices seemed to like this smarmster before them well enough. Here was a complete and utter lawyer saying that legal punctiliousness was more important than political despatch. Well, how very congenial for them all.
Here was a member of the legal trade union speaking, in his furtively buttery manner, of the higher calling of legal logic, the primacy of precedent, the pre-eminence of extended legislative process over the smack of firm government.
Yes, yes, yes, that’s more like it. Pannick the purist, scrivener to the stars, a plausible calmer of troubled legal nerves, was playing a home fixture.
Good morning. It’s day three of the supreme court hearing, which will decide whether the government or parliament has the authority to trigger article 50, which will begin the process of the UK leaving the European Union.
This morning David Pannick QC will continue making the case for Gina Miller, who was the lead claimant in the successful high court challenge, which has been appealed by the government.
Yesterday, he told the 11 justices that parliamentary legislation that paved the way for Britain to enter the EU is being treated with contempt by ministers who regard it as less important than the Dangerous Dogs Act.
After Pannick concludes, it will be the turn of Dominic Chambers QC, representing Deir Tozetti Dos Santos, a hairdresser who holds UK and European citizenship.
The action starts at 10.30am. We’ll be putting a live feed at the top of this page before it kicks off.
