The government's case as put to the Supreme Court was considered in two posts - here and here. Arguments for Gina Miller were put by Lord Pannick QC on Day 2 - (see here) and in the morning of Day 3 - (see here).
This post looks at the submissions on Day 3 by Mr Dominic Chambers QC for Mr Dos Santos. Submissions on Day 4 will be the subject of the next post. Those submissions were - Helen Mountfield QC for interested parties Graham Pigney and others; Manjit Gill QC for interested parties AB, KK, PR and children and then Patrick Green QC for the "ex pat" interveners George Birnie and others.
Written cases were submitted to the court: Gina Miller; Deir Tozetti Dos Santos; Graham Pigney and others; AB, KK, PR and children
Transcript Day 3 - Morning and afternoon combined - 4 page version (PDF)
Dominic Chambers QC for Mr Dos Santos -
Transcript Day 3 pages 53 to 111 - - Morning and afternoon combined - 4 page version (PDF)
Mr C adopted the submissions by Lord Pannick and invited the court to approach the case from first principles as based on the fundamental principle of parliamentary sovereignty. He put a three stage argument:
Stage 1 - no person or body apart from Parliament itself can override, nullify, or set aside legislation enacted by Parliament - (or the operation or effect of legislation).
Stage 2 - The appellant conceded that triggering Art 50 will cause EU law rights to be lost. These rights are in primary legislation - notably the ECA72 and the European Parliamentary Elections Act 2002.
Stage 3 - there is no parliamentary authorisation for the executive to override or nullify the legislation such as ECA72.
Stage 1 - Parliamentary sovereignty
Parliamentary sovereignty was forged on the battle fields of the English civil war - the clash between
|Marston Moor - 2nd July 1644|
- Parliament actually meant The Queen/King together with the Houses of Parliament - Lords and Commons.
- Parliament - as so defined - could make or unmake any law whatsoever and not other person or body could set aside such law
- An Act cannot be pronounced as void due to being opposed to the constitution on any ground whatsoever
- The sole right of electors under the constitution is to elect Members of Parliament. Electors do not have the means of initiating, sanctioning, or repealing legislation. No court will consider argument that legislation is invalid as being opposed to the opinion of the electorate. Opinion of electors is expressed through Parliament and Parliament alone. That the electorate can assert itself is a political fact but courts do not take notice of the "will of electors" - "the judges know nothing about any will of the people, except in so far as that will is expressed by Act of Parliament. (pg 62).
- The legal sovereign power is Parliament. At pg 63 - Mr C said - "Now, the appellant says that he does not dispute what he terms the general principle of the doctrine of parliamentary sovereignty, and he goes on to say that nevertheless it is the case that the executive can by the use of the prerogative alter the law of the land, including that set out in statute. Now, from a parliamentary sovereignty purpose, that striking proposition is, we submit, simply wrong. The doctrine of parliamentary sovereignty is not a general principle, it is the fundamental legal doctrine upon which our constitution stands. As we have explained in our written case, and as the courts of the highest authority have said over the centuries, the doctrine of parliamentary sovereignty conditions and refines and defines other relevant concepts. Most importantly in this context, the issue and the extent and use of the prerogative."
Mr Chambers then took the court through the background to the ECA72. In a nutshell, Parliament consented in principle on 28th October 1971 to the UK joining the EEC. The resolution stated -
Lord Neuberger asked whether, as a matter of law, the government could have decided not to ratify - see pages 72 - 73. Mr C said that it would have been an abuse of power not to have ratified.
The court was then taken to Lord Templeman's writing - "Treaty making and the British Parliament - Europe" - (Chicago Kent Law Review). See transcript pages 73-77.
Mr C then referred to the Green and White Papers leading to the Constitutional Reform and Governance Act 2010 - pg 78.
Mr C said that once it is understood that the source of the relevant rights in domestic law is primary legislation passed by Parliament, then the legal effect of the appellant's concession in paragraph 62A of his case can be properly understood, because what it amounts to is that rights granted by Parliament under primary legislation will undoubtedly and inevitably be lost or removed by notification under Art 50. Not just EU law rights, but rights granted under acts of Parliament.
The appellant was asking the court to look at matters from the wrong end of the telescope (pg 91).
The appellant said - see whether there is prerogative and, if there is, the issue is whether or not it has been limited. This turns parliamentary sovereignty on its head. The correct approach is to show that Parliament has authorised the loss of rights in question (pg 92). It was for the executive to show in clear terms that Parliament has authorised the loss of statutory rights intended to be brought about by executive action.
Stage 3 - Authorisation -
There is nothing in the 2015 Act to authorise the government to act. Parliament passed the Act knowing full well that in our system of representative democracy, referendums are not legally binding. This was the position in 1975 and Mr C referred the court to the 1975 legislation which was materially identical to 2015.