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The Guardian - UK
The Guardian - UK
Politics
Haroon Siddique

Brexit: Day two of supreme court hearing concludes - as it happened

Watch live: article 50 supreme court hearing day two

Summary

  • David Pannick, representing the lead respondent, outlined seven reasons why the government’s case should fail, including that the royal prerogative powers are insufficient to nullify the 1972 European Communities Act which has a constitutional status.
  • He said there was “no relevant prerogative power” and the government desired trigger of article 50 would exceed its powers. He also said government must show that parliament “has clearly inferred a power to nullify a statutory scheme”, which he said it had failed to do.
  • The government rejected an amendment to give legal force to the referendum during a debate on the 2015 European Union Referendum Act, said Pannick. The amendment was proposed by the SNP’s Alex Salmond but was dismissed by the government because the act was said to “make no provision for what follows” the vote.
  • Pannick said there was an “irony” that the appellant wants to remove the powerful effect of EU law but said that is the very reason the government cannot act without the authority of parliament.
  • He also argued that the prerogative powers to make and unmake international treaties are limited to the extent that they cannot affect domestic law. The prerogative power ends where domestic rights begin, he said.
  • Earlier, concluding the case for the government, James Eadie QC warned that the claimants’ case is a “constitutional trap”. The lawyer argued that the court would be imposing a new rule in a “highly controversial area”, accusing the other side (the respondents) of “tight-rope walking” to make their case.

That’s it for today. The court is adjourned until 10.30am tomorrow.

I’ll post a summary shortly.

Pannick says it makes no sense if parliamentary authority was required under section 2(1) of the European Communities Act 1972 for an amendment to UK law if a new treaty is added but not for “destruction” of it, i.e. withdrawal from the treaty.

It would mean requiring an act of parliament for the “lesser” of the two actions, he argues.

One of the justices suggests parliament, through the 1972 Act could have intended to retain control over the terms of membership (i.e. requiring parliamentary authority for amendment) but to allow the executive to leave the “club” without authority.

Pannick replies that it’s possible but “unrealistic”.

This is the biblical verse about the gnat and camel that Pannick cited.

The consensus seems that to be that Pannick is doing a pretty good job - his delivery is certainly punchy and fairly easy to follow. But a barrister from Doughty Street Chambers points out on oversight:

The panel consists of ten men and one woman - the deputy president Lady Hale.

The 1972 act was intended to create a “constitutional revolution” and it is inherently implausible it would intend “that it could all be set at nought by the exercise of prerogative powers”, says Pannick.

Parliament has created and parliament can take away.

Pannick confirms thathe is treating parliament as the source of the law rather than the “conduit” as Eadie suggested yesterday.

However flexible our constitution, it cannot be that ministers can use the prerogative to take away powers that parliament has created.

The general message conveyed by the 1972 act is very clear as to parliament’s commitment to the new source of law. That the Crown has a role in the Council of Ministers does not advance the government’s case, says Pannick.

They’re discussing the long title of the European Communities Act, which was also scrutinised during Eadie’s arguments yesterday.

The long title of the act refers to the enlargement of the EU so it cannot be consistent that the executive can use powers to reduce the size of the EU by taking the UK out, asserts Pannick.

There is no provision for withdrawal because parliament intended to make the UK’s membership permanent until parliament should decide otherwise, he continues.

Fifty-five minutes into his submissions and Lord Pannick QC, who represents the lead claimant Gina Miller, appears to be receiving relatively few challenges from the semi-circle of 11 justices to his developing argument.
Royal prerogative powers are not sufficient to nullify the 1972 European Communities Act which has a constitutional status, Pannick asserts.

The 1972 European Communities Act is explicitly not subject to implied repeal and Eadie agrees with this point, says Pannick.

He cites the high court judgement saying that as parliament implied it should be exempt form casual repeal by parliament it cannot have intended that it could be repealed by ministers under prerogative powers. Pannick reads the quote saying: “I cannot have put it better myself.”

Pannick goes on:

The new legal order doesn’t merely confer rights on individuals in international law ...the new legal order, as recognised by the 1972 [European Communities] act, recognises a body of rights which take effect in national law and which national courts are obliged to protect and enforce.

Pannick says there’s an irony in this case in that the appellant wants to remove the powerful effect of EU law but that’s the very reason the government cannot act without the authority of parliament.

It’s not easy to find cases in the book because they are rare but what cases there are are all to the same effect (i.e. that prerogative powers cannot be used to take away the domestic rights of citizens), says Pannick.

Eadie refers to a number of other examples of the use of prerogative powers in his written case, he continues. We have addressed them in our written statement but none of them involved the use of the prerogative to alter domestic law, “far less to remove a whole body of law”, claims the counsel for Miller.

There is no relevant prerogative power in this case.

Next he says the government must show clearly that parliament conferred a power on it to alter rights and duties i.e. the power it is claiming in this case.

If there’s any doubt upon the power conferred, “it should be resolved by a restrictive approach”.

The prerogative power ends where domestic rights begin, continues Pannick.

He is citing some of those “high judicial authorities” he referred to.

They include:

There is simply no prerogative power to nullify, frustrate a statutory scheme, says Pannick.

The appellant relies on the well-established power to enter into and resile from international treaties, he continues.

The respondent is not denying those powers but the government is not recognising the limitations of those powers to prevent them impinging on parliamentary sovereignty.

Miller’s counsel says the crown enjoys a broad power in the making and unmaking of international treaties is precisely because what happens on the international plain can not affect domestic law.

He says the limitation of the prerogative to change domestic law are supported by “high judicial authority”.

A grab taken from the televised live feed shows David Pannick QC speaking at the supreme court.
A grab taken from the televised live feed shows David Pannick QC speaking at the supreme court. Photograph: HO/AFP/Getty Images

The government rejected an amendment to give legal force to the referendum, says Pannick.

Pannick refers to the transcript of the parliamentary debate and is asked to justify doing so. He says it is permissible to refer to Hansard in court.

They continue and Pannick says the amendment was proposed by Alex Salmond.

The act “did not address any consequence, far less did it address the process for leaving the EU if the people voted, as they did, to leave”.

The question for the court is does the appellant have a prerogative power to notify under article 50 (2). This is not to deny any effect to the referendum. The referendum is plainly an act of political significance.

But that - political significance - is not a matter for the courts, he continues.

If the proper interpretation of the 1972 act is ministers have no power to nullify the rights, the court would need a much clearer statement in the 2015 act that the inhibition is removed, says Pannick.

Updated

Pannick continues.

My submission is that it is inherently unlikely ...that parliament when it enacted the 1972 act ..intended that such fundamental change could be set aside by a minister.

Pannick is setting out seven key reasons why the government is wrong.

Our case is that there is no relevant prerogative power in this context.

The appellant’s desired conduct exceeds his power, says Pannick.

The appellant must show that parliament “has clearly inferred a power to nullify a statutory scheme”.

In the light of the purpose and content of the 1972 European Communities Act parliament did not intend that the prerogative could be set as

The appellant is wrong to regard De Keyser as setting out an exclusive principle as to the use of executive prerogative powers.

Eadie’s reliance on the post 1972 act cannot assist you. The question is whether parliament intended to confer a new power and I say only the clearest of statement by parliament could create that power.

It’s no answer for the appellant to say parliament can choose how to be involved. Notification (that the UK is leaving the EU) will create nullification of statutory rights.

Here is David Pannick QC for Gina Miller.

He begins:

The prerogative power does not allow ministers to nullify statutory rights and duties...

The appellant’s argument if correct far from having a constitutional status would have a lesser status than any act, a lesser status than the Dangerous Dogs Act.

It would be quite extraordinary if the 1972 act could be set at nought by a minister acting without parliamentary authority.

The attorney general for Northern Ireland, John Larkin, is appearing because of legal challenges in Belfast arguing that Northern Ireland has its own constitution consisting of the Northern Ireland Act and the Good Friday Agreement and so they are sovereign on constitutional change. The case was joined to the supreme court hearing and Larkin is arguing that the Good Friday peace agreement has nothing to do with EU membership.

Some legal observers remain surprised that the government has not chosen to argue that Brexit is reversible, a switch of position that might enhance its chances.

Dr Kieran Laird, head of constitutional Affairs at the Brexit Unit in the law firm Gowling WLG, said:

Despite many rumours to the contrary, the government has not reversed its position that, once triggered, the Article 50 process is irreversible.

That would have been a big (and politically difficult) change to its case as argued before the supreme court and might have persuaded the supreme court to find in its favour.

The supreme court may still take an interest in the issue, however, and could potentially refer the matter to the European Court of Justice for a ruling, which could potentially delay Article 50 being triggered.

The Law Society, which represents solicitors across England and Wales, has put out a statement in support of the independence of the judiciary to coincide with the supreme court hearing. The society’s president, Robert Bourns, said:

The reaction of some parts of the media and by parts of the political world to the earlier decision by the High Court was an affront to the rule of law which underpins our democracy.

Our independent judiciary is respected the world over - it is the cornerstone of the rule of law. Any attempt to politicise this process which is about who, constitutionally, should be allowed to trigger Article 50, should be shunned.

Our legal system, evolved over many centuries, is fundamental to ensuring power is not abused.

The referendum result last summer was a vote to leave the EU. It decided nothing else. The question before the courts is a legal issue. It will determine the correct legal process for us to start our departure from the EU, clarifying whether this can be triggered by parliament or the prime minister.

No one is above the law, including the prime minister and the cabinet. We should be celebrating the fact that we have an independent and incorruptible judiciary to protect us all and to ensure the rule of law is upheld.

The justices are back in their seats. Up now is the attorney general for Northern Ireland, John Larkin. Like the advocate-general for Scotland this morning, he will be supporting the UK government’s position.

He is expected to speak for about 45 minutes and then we will hear from the respondents. David Pannick QC will be up first, representing Gina Miller, who was the lead claimant in the high court case.

Summary

  • Concluding the case for the government, James Eadie QC warned that the claimants’ case is a “constitutional trap”. The lawyer argued that the court would be imposing a new rule in a “highly controversial area”, accusing the other side (the respondents) of “tight-rope walking” to make their case.
  • Eadie insisted that the government’s case “fully respects, and offers no affront, to parliamentary sovereignty”. He told the justices that parliament had limited some prerogative powers “expressly and in detail and it has not touched the power to give article 50 notice”.
  • He also argued that parliament did not want the obligation of triggering article 50, which the high court has conferred on it. He said it would be wrong to infer a “hidden presumption” that parliament wants such a power.
  • In response to a question, Eadie said there would be no details as to the nature of the UK agreement with the EU when giving notice of article 50. He said it would simply be one line, notifying that the article was being triggered.

If parliament wished to prohibit the executive from exercising the foreign affairs prerogative, “it could do so tomorrow”, argues Keen, echoing Eadie earlier.

Parliament decided to remain silent on that and in my opinion for a very particular reason.

It is not for the court to prohibit the government from triggering article 50, he respectfully submits.

The court has adjourned for lunch. Back at 2pm.

Lord Keen QC, the Scottish advocate general, is discussing the Sewel convention, a rule introduced at the time of Scottish and Welsh devolution in 1999, which says both devolved parliaments usually have to approve any act of Westminster that affects their powers.

It is a “self-denying ordinance” on the part of parliament, a “political restriction” on parliament, he says. But the correct legal position is that parliament is sovereign and can legislate on any matter it wishes, argues Keen.

Keen calls the Sewel convention, which is incorporated in statue, a statutory expression of a political convention. The justices seem to have their doubts that a piece of statute can be regarded as purely political.

Lord Richard Keen QC arrives at the supreme court in London, today.
Lord Richard Keen QC arrives at the supreme court in London, today. Photograph: Andy Rain/EPA

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Now, it’s Lord Keen QC, the advocate general for Scotland, who is dealing with devolution issues.

Eadie begins his closing submissions.

Parliament has limited some prerogative powers “expressly and in detail and it has not touched the power to give article 50 notice”.

There is no basis for a “hidden presumption” as to parliament’s intention (to give article 50 notice).

The case against the government is a “constitutional trap”. The court would be imposing a new rule in a “highly controversial area”.

And with that Eadie is finished.

Onto parliamentary sovereignty, which Eadie says the government’s case fully respects.

Parliament has specified, when, how and with what it will be involved, the government’s counsel says.

Parliament is already deeply involved and unsurprisingly involved in the whole issue of withdrawal.

There have been opposition debates and in no instance has any party asked for primary legislation to enact article 50, he points out.

Parliament does not seem to want the obligation the divisional (high) court has thrust upon it.

Eadie claims that the other side’s case involves “tight-rope walking”, ignoring the legislation as they say the prerogative never existed to change the law.

It also involves saying “stop the clock in 1972” and ignore the dualist nature of the act and subsequent legislation, including “the elephant in the room”, the 2015 EU Referendum Act..

What they did was to take a number of generally accepted principles and invent a new principle, pressing the general principles outside the context in which they were employed, he continues.

Whatever the outcome of the article 50 case, it will have established the supreme court’s enhanced position as an interpreter of the UK’s creaking, unwritten constitution.

The supreme court has been edging towards that role - of becoming a constitutional court - for some time.

Justices already examine legislation from the Welsh Assembly to ensure that it is constitutionally consistent with devolution and Westminster powers.

Arguments from the Welsh and Scottish governments in the coming days are likely to raise further awkward political questions about the devolution settlement. Calls for the UK to draft some form of written constitutional are set to become louder.

The actual decision to join the EU (or EEC as it was in 1972) was taken by the government but it was put to parliament for approval, says Lord Mance.

They were political decisions, says Eadie. You have to look at the 2015 act. This was after “real controversy”, a general election, an act of primary legislation.

You’re being asked to declare as unlawful the prerogative exercise of powers, the government counsel says.

Lord Hughes asks what will happen to EU law when the UK leaves the EU. Eadie says much of it will lapse.

Updated

Back on to the scope of the royal prerogative now.

The prerogative with which we are dealing has always been recognised as a general power - to conduct foreign affairs - with specific elements, which are all the things required to conduct foreign affairs, e.g. ratification of treaties, withdrawal, Eadie says.

The right question to ask is whether the government has taken “bites out of” (i.e. limited) the prerogative, he argues.

Eadie moves on the potential for prerogative powers on the international plain to have an impact on domestic rights. He says the exercise of prerogative in a number of spheres can have impact on domestic rights. He cites De Keyser and Post Office v Estuary Radio as precedents but he is challenged as to whether these cases are akin to the present case.

British government legal council James Eadie speaks at the supreme court in this image taken from video in London.
British government legal council James Eadie speaks at the supreme court in this image taken from video in London. Photograph: AP

If the high court’s judgment against the government stands, James Eadie QC alleges, then a new restriction on the government’s executive freedom in foreign affairs will have been created.

It would introduce a much more stringent stream if control [by parliament] in a newly discovered principle. You would need primary legislation [to sign international treaties or other overseas developments.

The Supreme Court is discussing the fact that the act which provided for the vote on the alternative act referendum was legally binding but the EU Referendum Act was not.

The 2015 EU Referendum Act is “studiously silent” on what should happen after the vote. Should it then be left to parliament to decide what should happen, Lord Neuberger asks?

Eadie suggests that nothing more was needed about how the UK would withdraw in the event of a Brexit vote.

Again, Eadie says the 1972 European Communities Act makes no provision for withdrawal.

On entry or before we signed up to the treaty of accession there were parliamentary motions but they were not legally binding, they were simply parliament’s choice about how to give its permission and how to get involved, he continues.

The giving of article 50 notice was preceded by primary legislation, in the form of the European Union Referendum Act 2105, which was intended to give force to the will of the people, says Eadie.

Is it realistic to suppose the notice of article 50 will give no detail as to the nature of the agreement? Eadie is asked.

He effectively answers in the affirmative. It will simply be one line, complying with article 50, he says.

Lord Reed asks whether the 2015 referendum act set in train a political process which has to be put in effect by political actors, considering the size of the majority, turnout etc.

Eadie says the act recognises that the prerogative exists. The significance is “it leaves the prerogative in place”.

Updated

The 11 justices are continuing with their customary interjections, teasing out legal meaning with sometimes abrasive questions, observations and interruptions.

Conventional wisdom is that if you follow the thrust of the judges’ queries you may be able to discern the drift of their sympathies and anticipate the ultimate outcome of the judgment.

With 11 justices that assessment is harder to achieve. The system may well be flawed anyway, since the justices usually give both sides an equally hard time.

There is a discussion over the great repeal bill, the legislation to end the authority of EU law by converting all its provisions in British law on the day of exit from the bloc.

Eadie agrees with Lord Sumption when the justice asks if the great repeal bill has no legal significance to our decision.

But then Eadie argues that parliament will be involved under the great repeal bill and says the government does not agree that the bill is legally irrelevant.

Sumption responds:

I think you’ve given two diametrically opposed answers to the same question in the last five minutes.

One of the justices jokes that they might have to look back through the transcript to find the one they agree with.

Moving on, Eadie says:

I will try not to give too many inconsistent answers in the same 5 mins.

Eadie begins:

Lords and ladies I’ve still got quite a bit to get through, I’m afraid.

He begins on the 1972 European Communities Act. He says the 1972 act is merely providing the mechanism for transposition. It does not and was not intended to touch the executive powers on the international plain.

The act does not even authorise the government to make the UK a member of the EEC (the forerunner of the EU).

Prerogative powers continue to be available for all functions in the EU so there would have to be an explicit restriction on the powers to withdraw, Eadie says.

He’s back on the Fire Brigades Union case, which came up yesterday.

James Eadie QC, for the government, aka the “Treasury Devil” is back on his feet. He’s telling the justices about some notes that were waiting for them when they came into court this morning. The notes are intended to provide some answers to questions put to Eadie by the justices yesterday.

The court is full, just waiting for the justices now.

If you’re really keen, you can find the transcript of yesterday’s proceedings here.

It is fair to say that few if any legal cases have generated as much interest in recent years as the supreme court hearing on article 50, especially when it comes to constitutional law.

People were queuing early yesterday morning to get into the court and both Sky and BBC streamed most of the day’s proceedings live.

But courtroom drama it was not, the sketch writers point out.

My colleague John Crace writes:

“I don’t propose to go on and on,” [James] Eadie began, before going on to do just that. The courtroom began to feel stifling and one or two people began to get very heavy-lidded. Sensing he was losing his audience before he had started, Eadie made a bad gag, at which a few of his team laughed sycophantically. Lady Hale was unmoved, observing that some of his bundles were not in the right order.

That intervention was the cue for the judges to mount polite guerrilla warfare on Eadie for the rest of the day. They knew he was too bright to be this vague, so the only possible reason he could have for deliberately missing the point was to steer them away from the fact that he wasn’t entirely sure what point it was he was trying to make. This kind of thing doesn’t normally bother lawyers of Eadie’s calibre, but it’s not every day you’re up against the 11 best legal minds in the country.

Eadie blustered on with talk of ambulatory conduits on the international plane and double-negative resolution procedures, but the justices were not to be swayed. Time and again they picked him up on the detail.

...Eadie puffed out his cheeks. It had been a long day. And Tuesday might be even longer.

Quentin Letts in the Mail, was similarly underwhelmed:

The justices pinged in questions as at an Oxbridge tutorial. Lord Carnwath drawled forth, ultra pukka.

Neuberger drilled his left ear for any wax that might see him through to the luncheon adjournment.

Lord Hughes stroked his dewlaps, a talkative Lord Mance sank in his seat and Lord Wilson squatted under a Max Bygraves hairdo. Lord Sumption, whom my old colleague Frank Johnson always called Lord Suction, had an even better barnet. It could have been candyfloss on a stick.

Under it he wore a tie whose motif was based either on a piano keyboard or an optician’s chart. Eye ache.

The case continues, as they say. It may struggle for full houses.

Good morning. Welcome to our continued coverage of the government’s appeal against the decision of the high court that only parliament has the authority to trigger article 50, which dictates how countries leave the European Union. The government is arguing that ministers have the authority to trigger the said article using executive powers conferred by the royal prerogative.

By now I expect you’re all experts on the royal prerogative, so today’s proceedings should be easy to follow!

James Eadie QC will continue making the case for the appellant (the government) this morning and then this afternoon the attorney general for Northern Ireland, John Larkin QC, will make submissions as cases heard in Belfast on the constitutional impact of triggering article 50 are being joined up to the dispute in the supreme court.

Then the respondent’s case begins with David Pannick QC representing Gina Miller, who was the lead claimant in the high court case.

The action is expected to start at 10.15am this morning, although the president of the supreme court, Lord Neuberger, said yesterday that one of the justices has a doctor’s appointment which may force them to start 10 minutes late. The wheels of justice turn slow.

In the meantime, you can read our legal affairs correspondent, Owen Bowcott’s report of yesterday’s proceedings.

Updated

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