Thursday 5 January 2017

Brexit litigation in the Supreme Court - the case for Miller, Dos Santos and others (5)

The previous post looked at submissions by Helen Mountfield QC on behalf of  Graham Pigney and others.  This post looks at submissions by 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 othersAB, KK, PR and children

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

Mr Manjit Gill QC - Transcript pages 101 to 115

MG noted that some people were trying to make this case very hard because nobody ever thought that the 2015 Act intended to confer any prerogative power at all.  Nobody (i.e. in government or the legislature) ever thought there was going to be a leave vote.  That is why the Act is drafted in a limited way.

Even sovereigns must be constrained by the rule of law and it is not that you cannot use prerogative to dispense with laws, there is "simply no prerogative to dispense with laws, it is not a question of its use or abuse, it just doesn't exist (pg 102).  That was the position before the ECA72 and the Act did not change it.  No question of a clamp arises.The non dispensing principle - spoken of by Richard Gordon QC - remains and no question of a clamp arises at all.

MG then went on to make 3 sets of submissions.

First - There are very real examples - in the printed case - of how the proposed use of prerogative would affect individuals such as MG's clients.

At pg 104, MG explained who the clients are: "the AB parties, they are representative of two classes of persons ..... EU nationals living in this country and those who derive rights of residence from them, principally their family members; and secondly, children, whose continued presence in this country depends on the exercise of them or their carers and family members, of rights derived from EU law.  And I have in mind British children who as EU citizens need carers who are non-British or non-EU even, who therefore, as a result of EU law, need their carers with them, who are then given what are called Zambrano rights, derivative rights of residence.  These classes of persons, and the first class, EEA and their family members, is of course a very large class, are very, very significantly affected by the position."

MG then said (pg 104-105) - "Now, for the reasons that are set out in our written case, we say that the effect of what the Government now wants to do, is now forced to do, not having thought about it beforehand, is to say that they will use the prerogative to give the Article 50(2) notice; having themselves made an Article 50(1) decision; they don't say the 2015 referendum decision was the decision, they say they themselves, the Government, will make and have made, the decision; and that they will give the Article 50(2) notice under the royal prerogative.  And they say they will give it without any prior safeguarding of the rights that would otherwise fall on the day of withdrawal.  We say that is simply a complete breach of the non-dispensing principle, whatever label one wants ..."

For EEA nationals in the UK this means, in the absence of protection, that at withdrawal they must be ready to pack their bags and go on that day.  Of course these things may change in the future (pg 106) - Mr Eadie had said that the government would find ways of protecting people in due course.  "Due course is not good enough for the children that I represent."  They need to know their position now and they are entitled to know because of duties the UK has signed up to under the UN Convention on the Rights of the Child.  This uncertainty could be prolonged for 2 years (or more) - pg 107.

Those represented by MG might find themselves exposed to criminal liability and summary removal (pg 107).  The government had not disputed this but their answer is "we will find some way of sorting this out."  (See the legislation set out in the written case at paras 42 to 55) -   AB, KK, PR and children

MG referred to the Immigration Act 1988 section 7.  Section 7 refers to "provision made under section 2(2) of the European Communities Act 1972."  The EEA Regulations 2006 are that provision.  The rights flow from statutes (pg 108).  On the day of withdrawal, MG's clients would be in the UK without leave and would be committing a criminal offence.

Very pressed for time, MG turned to his second point - the "children's point" at pg 110.  Many family lawyers are very concerned about what will happen with Brussels 2(a) and all sorts of other regulations to do with the enforcement of orders across Europe.  Lord Neuberger said that this was a "Fire Brigades point" - the fact that the government says it is going to introduce legislation is nothing to the point.  MG agreed.

MG's third point was the "flexible construction" point.  This is a red herring.  The case is not about
flexible construction at all.  It IS about a clear constitutional point which is the bedrock of our constitution.  "We do not need to struggle to make the constitution flexible in order to give effect and meaning to that fundamental principle" (pg 111).  The flexible construction point - from Lord Bingham's speech in Robinson - was being used by Lord Bingham in a certain limited way.   "Lord Bingham was only able to refer to the need to adopt flexibility because of the flexibility which he derived from other statutory sections. Robinson is therefore a traditional exercise in construction of a statute, guided by the need to make the statute work in a flexible constitution."

The appellant was asking the court to go beyond this and drag out of the 2015 Act together with some ministerial statements that Parliament must have intended to cede control over this.  At pg 112-113 MG said: " ... the appellant's submission really is this. For the purposes of interpreting legislation in order to decide whether the executive has been given a prerogative power, such that this exercise will nullify a large body of laws given by Parliament of our fundamental human rights and freedoms, including exposing people to criminal liability, he says the court is entitled to have regard to (1) what the 2015 Act does not say, as opposed to normal principles of construction of language; (2) to couple that with the appellant's asserted interpretation of a background context, and in particular with statements made by ministers that it would be their intention to act in accordance with the outcome of the referendum, despite other statements to the contrary. (c) to infer therefrom by using this notion of a flexible constitution, and that is all it is, that the Parliament must have intended to confer upon the executive the power to give the Article 50(2) notification, simply on the strength of a vote if it was to leave the EU.  This is a novel and far-reaching proposition, indeed, it is outlandish and seeks to avoid the principle of legality; avoid the words of the 2015 Act;seeks to read in extra words which are simply not there; completely defeats the Hoffmann principle in Simms; and would require, if Mr Eadie is right, .... , actually look at a lot of other things like evidence; what did people mean when they said what they did in such and such statement and so on? What did Parliament actually mean? It is just a complete nonsense when one gets into how you are actually about to deal with it."

MG then asked why should it be assumed against Parliament, and against almost half of those who voted in the referendum, and perhaps all of those who did not, that Parliament understood and agreed to the proposition that by enacting the 2015 Act in the terms that it did, it was in fact ceding the legal question, the legal decision.  

MG finally referred to Lord Reed's point that the notion of a flexible constitution can be useful but this case was about something more fundamental than that.  "The court may be facing a certain amount of pressure, it is a 11-bench court, this is no time to turn a flexible constitution into a slippery one and let go of its bedrock fundamentals.

(Note: The shortness of time allocated to MG for submissions makes it even more essential to read his written case fully.  Also, see Ruiz Zambrano cases).

Mr Patrick Green QC - for "Expat" interveners - Transcript pages 115 to 130
PG represented some British citizens living in the EU ("expats") who are directly affected by the removal or the prospect of the removal of rights that will be lost as a result of the triggering of Article 50, rights which Parliament is not able to replicate for them outside the UK.   PG then adopted the submissions of Lord Pannick, Dominic Chambers, Helen Mountfield and Manjit Gill.

PG wished to focus on the anterior question of whether there was ever any prerogative and to seek to answer that by looking at a facet of the ECA72 not yet fully examined.  This was the point that, by the ECA72, Parliament  conferred not only rights and obligations on individuals domestically but it also gave its consent to the making of law for the UK by the institutions of the EU with the participation of representatives of the UK government (pg 116).  The ECA72 gave statutory authority to the government to participate in that process and, going further still, it permitted representatives of other governments to outvote the UK and legislate.  

[Note: In the earlier years of the UK's membership, it was possible for States to exercise a "veto" over far more matters than is permissible under the later treaties.  It is the extension of EU powers that gave rise to the desire at Westminster for "controls" to imposed and this occurred - e.g. the controls in the Constitutional Reform and Governance Act 2010 and in the European Union Act 2011].

The legislative power which Parliament conferred on the EU was, before the ECA72, only Parliament's to confer because only Parliament could legislate for the UK.  It followed that the power was one that only Parliament could take back.  PG said that this analysis is "dispositive" of the appeal (pg 117).

The later Acts (2008, 2011) regulated this conferral of legislative power (pg 118).  Parliament had always retained control over the treaties to which the ECA72 applied.  They are listed in section 1.  The later Acts control not the addition of treaties but address the consequences of how EU legislative mechanisms operate (pg 118).  Parliament was seeking to control that which might only otherwise have happened by the addition of a new treaty to ECA72 section 1 (p-g 119).  

Adopting the submission of Helen Mountfield, PG said that he words from time to time in ECA72
section 2(1) referred to the rights derived from treaties and not to the treaties themselves.  ECA72 section 1 operated as the "castle walls" so that no new treaty may be admitted other than with the consent of Parliament (pg 119).  The 2008 and 2011 Acts were seeking to control the "Trojan Horse" provisions within the Treaties - e.g. the ordinary revision procedure specifically contemplates the increase or reduction of EU competencies - see Art 48 TEU.

Lord Sumption observed that the ordinary revision procedure was not new with the Lisbon Treaty.  It was the simplified revision procedure that was new.  PG replied that was so but his point here was that the power to legislate for the UK was only ever Parliament's to exercise and it is only Parliament's to take back.  Lord Kerr had asked whether there was a prerogative power in 1972 (the anterior question) and the "conferral point" shows that there was not (pg 121).  The direction of travel of the 2008 and 2011 Acts is in a different direction to that contended for by the appellant (pg 122).

PG then said, again adopting Helen Mountfield's submission, that there was a consistent understanding, insofar as one can be discerned, from the court that it would be Parliament that would decide whether to leave the EU (pg 122).  PG relied on the case law from Blackburn v AG 1971 to Shindler in 2016.

When viewed through the prism that the ECA72 conferred legislative power, it cannot be said that the ECA72 was neutral about EU membership (pg 123) and this answered a question raised by Lord Mance.  "The conferral of the sovereign legislative power of Parliament on the EU institutions speaks only to the Act being consistent with the UK joining the European Community."

PG then turned to the 2015 Act.  When, as a consequence of the referendum, Parliament exercises its legislative choices, it may do so in various ways - e.g. it might mandate the government to trigger Article 50 or it might grant a power to the government to trigger it.  If it were to grant a power then the referendum would be of very considerable significance in the exercise of that power (pg 123-124).  That is a very different exercise to the question before the court which is whether there is a PREROGATIVE power to notify.  The referendum did not ask that question and the people did not answer it (pg 124).  The question for the court is a legal question and the only answer could be that there was no relevant prerogative power in 1972. 

Lord Clarke asked what was the role of the European Union (Amendment) 2008 Act in all of this (pg 125).  PG replied that it went to the Trojan Horse point.   [Note: The 2008 Act - as enacted].  Pg then quoted section 5 preventing ratification of certain treaties and then moved on to section 6.  [Note: Section 6 was repealed by the European Union Act 2011].  Section 6 referred specifically to the simplified revision procedure.

There is then a discussion about why section 5 was necessary and it may be that Parliament considered it to be needed since, without section 5, section 6 might have been thought to imply that new treaties did not require parliamentary approval - (see pages 126 -127). 

Lord Mance then wanted to know whether the ordinary revision procedure was in the previous treaties (pg 128) but the point appears to have been left because Lord Mance said that it would be interesting "to chase that back a little" but PG would not be able to do it now.  See 128 to 129.

Finally, PG said that the 2011 Act section 18, insofar as it assists, suggests that the basis for the rights to remain effective in domestic law was the ECA72 and it was striking that the Act did not say - so long as the treaties remain in force on the international plane, or wording to the contrary (pg 129).

There was a consistent picture from Blackburn, through the parliamentary materials, all the way through to Shindler, and with section 18 appearing in 2011, that the premise of the statutory scheme is that only Parliament may authorise notification under Article 50.

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