Wednesday 4 January 2017

Brexit litigation in the Supreme Court - the case for Miller, Dos Santos and others (4)

This post looks at submissions by Helen Mountfield QC on Day 4 of the Brexit hearing in the Supreme Court.  The submissions were  for interested parties Graham Pigney and others,

Written cases were submitted to the court: Gina Miller; Deir Tozetti Dos Santos; Graham Pigney and othersAB, KK, PR and children

Transcript Day 4 - Morning and afternoon combined - 4 page version (PDF)

Helen Mountfield QC - Transcript Day 4 page 60 to 100

Helen Mountfield is referred to in this post as HM.

HM began by saying that her clients were a group of British citizens and one Gibraltarian who would be significantly affected by a decision to leave the EU.  Their involvement in the litigation had been "crowdfunded" by many people making small donations.

This case involved a long standing constitutional principle.  The case did NOT involve trying to persuade judges to usurp the powers of any other arm of the state in an illegitimate way (pg 61).  There was no attempt - as Mr Eadie had suggested - to persuade the court to undertake any act of judicial legislation.  The case was not about whether the UK should leaved the EU and there was no attempt to persuade Parliament to do anything.

The question of law was whether the intended act of the appellant to notify the EU would be lawful in the absence of statutory authority.  The relief sought was that the Supreme Court uphold the High Court's declaration.

Mr Eadie had invited the court to find that the appellant could trigger Art 50 using prerogative even though that would alter domestic law.  That was was based on a false assumption that the foreign affairs prerogative extends to permitting the government to dispense with domestic law.  The appellant invited the court to start the analysis at the wrong point - assume there is a prerogative and ask whether it has been abrogated.  This bypassed the prior question of what limits, if any, apply to the prerogative power to make and unmake treaties.  Can the power be used to alter domestic law (pg 63).  If it does not allow that then no question of abrogation arises.

HM's submissions were to be in two stages.  First - address the extent of the treaty prerogative and secondly, see whether triggering Art 50 would in fact change domestic law and remove EU law rights contrary to the prohibition on dispensing with law.  HM argued that it would have that effect because the EU law rights are also domestic law rights and were not contingent on the exercise of the prerogative.  Professor Finnis was wrong to say that the ECA72 was no more than a "vessel" allowing Ministers to cut off the source.

Stage 1 - 

The government has power to enter into and withdraw from treaties - subject to the Constitutional Reform and Governance Act 2010 (CRAG).  The dispute in the case concerned the extent of that power.  Government claims an untrammelled power whereas HM argued that the power could not be used to alter domestic law - whether common law or statute.  HM cited Bancoult (House of Lords 2008) where Lord Bingham (at para 69) had said that - "When the existence or effect of the royal prerogative is in question the courts must conduct an historical inquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances."  Therefore, an historical enquiry was necessary and that was set out in the written case for Graham Pigney and others at paragraphs 13 to 23.

HM said that the appellant confused two different concepts.  One is that the prerogative power to affect treaty rights exists.  That point was not controversial and HM referred to how the status of Crown Servants at GCHQ were affected (pg 68-69).  The second concept, confused with the first, was the idea that the prerogative is so wide that it can change domestic law, or suspend or dispense with the operation of the law or alter the sources of the law.  At pg 69, HM said:

"The confusion in the appellant's case, we say, is to equate the existence of a prerogative power which can have an effect on rights when operated within its scope to the existence of a prerogative power to change or dispense with law outside its scope. The confusion results in a submission which we submit is contrary to the most basic principles of our constitution.  Of course there can be actions in use of the prerogative on the international plane which vary the facts to which the law applies. Post Office v Estuary Radio is one example; the prerogative is used to change the territorial waters, the scope of the statute or the effect of the statute changes. The Joyce case is another, you declare war, and somebody making a broadcast becomes the Queen's enemy and comes within the ambit of the Treason Act."  [Note: The Treason Act example appeared in the article by Lord Millett which had been drawn to the court's attention by the government -Lord Millett - Prerogative power and Article 50 of the Lisbon Treaty].

HM continued - "But we say that is materially different to changing the law which applies to particular facts, let alone the sources of law. For example if the war prerogative includes a power to requisition, as was assumed in De Keyser, that is not the same as empowering the Government in time of war to abolish or alter common law or statutory property rights altogether.  So we dispute the appellant's submission that the prerogative can be used to dispense law, on the basis of the historical enquiry which we have undertaken and set out in our written case."

HM then took the court through the case law - pages 70 to 75.  This is not repeated here.  Then, at page 75, HM said that the Secretary of State's submission that prerogative to enter or withdraw from international legal obligations was entirely untrammelled, simply could not withstand the historical enquiry "which Mr Eadie and I agree is the correct approach to this."

HM argued that there was a strong line of authority to support the orthodox view that the executive may not, by exercise of its foreign policy powers, vary domestic law or to remove rights.   HM then proceeded to highlight the principal authorities which are also in the written case.  This is at Transcript pages 76 to 84 and is not repeated here.  The analysis showed that there was no authority in support of the government's proposition that the prerogative power extended to altering domestic law.    HM's submissions on her Stage 1 concluded at page 85 - "That is the end of my first point.
There is no prerogative power to change the law, there is nothing to abrogate. Mr Eadie's submissions on the  Keyser principle are, as Mr Gordon suggested, in effect to say that the Government can change the constitution in a radical way, because Parliament has never said that it can't.  Or, to put it at a perhaps more facetious level - we are on the last day of the case -- Mr Eadie's submissions are the equivalent of arguing that because none of the attempts to catch the Loch Ness monster succeeded, the Loch Ness monster still roams free"

HM also submitted that the ECA72 did not abrogate or clamp any prerogative power that may have existed - pg 86.

Stage 2 - 

EU law was part of domestic law because Parliament so willed.  This was supported by an observation of Lord Mance in Pham (para 80) and by Lord Reed in HS2.  The European Union Act 2011 section 18 had a declaratory effect - that EU law has effect in the UK because Parliament said so.  Any suggestion that EU law, the law arising from time to time under the treaties is in some way not domestic law is contrary to the express statutory provisions which confirm the pre-existing common law - (pg 87-88).  To argue that the ECA72 was an empty vessel (pg 88) was not right on either the language of the ECA72 or the statutory intention (pg 89).

HM accepted the ambulatory nature of the ECA72 section 2(1) - "from time to time" - but not in the way suggested by the government.  The Treaties to which the ECA72 applies are set out in ECA72 section 1 and they are specified by Parliament (pg 89).  The ECA72 applies to the rights as they exist from time to time and NOT to the treaties from time to time.  The Treaties are fixed by Parliament/

HM submitted that there would be serious consequences if the appellant was right (pages 91-92).  The appellant would be able to sweep away a whole swathe of domestic law rights.  There was then discussion as to whether the government could render the Human Rights Act 1998 ineffective - for this see pages 92-93.  [Note: The human rights arrangements do not operate in the same was as the ECA72 so this point would require more consideration].

HM closed he submissions with two final points.

Whether the 2015 Act could in some way revive or legitimise the use of prerogative if it existed - put into abeyance by the ECA72 and subsequent legislation.  This point would only arise if HM was wrong on the extent of the prerogative.

Even in those circumstances, it would be necessary to appreciate that assuming it was the ECA72 which put the prerogative into abeyance, it was also the ECA72 which created EU law rights which are described as fundamental rights, and also created rights or a scheme of law which was described as constitutional by our courts.  It would be necessary to accept that the ECA72 and the devolution acts are constitutional statutes and so, to undo the ECA72 and restore the prerogative which had previously been held in abeyance, would require clear and express statutory language (pg 96).

Finally, HM referred to a point that Lord Carnwath had raised about the European Union Act 2011 and Article 50(3).  The Schedule to the Act refers to Art 50(3).  This argument is at transcript pg 97-99.  Art 50(3) deals with a time extension to the 2 years set out in Art 50.  [Note: the gist of this appears to be that a referendum would not be required in the UK if the European Council were to extend the time limit].

HM then ran out of time and he submissions end at transcript page 100.

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