Thank you for following the blog, I hope it made some sense at least part of the time. Sorry for the occasional (hopefully only occasional!) typos and incomplete sentences. In my defence, following four days of constitutional law arguments when you are not a constitutional lawyer is pretty tricky (next, I’m going to try my hand at brain surgery).
Here is a summary of the final day:
- The royal prerogative gives the government to repeal international treaties that impact in domestic law but not domestic legislation, the government’s counsel said, closing its case. James Eadie QC said the respondents’ submissions were wrong to suggest that the government sought to repeal UK parliamentary legislation by way of the prerogative.
- The advocate general for Scotland risked the wrath of the devolved nations by describing the convention that the devolved parliament should usually have a say on devolved matters as “a self denying ordinance by a sovereign parliament [Westminster]”. Lord Keen QC said the Sewel convention is not justiciable, i.e. capable of being decided by a court, and so could not create rights.
- The European Communities Act 1972 was an “implementing statue” that made no provision “seeking to control” the government’s actions internationally, said Eadie.
- The parliamentary motion endorsing the timetable for triggering article 50 was “legally significant” even if not legally binding, the government’s counsel argued. But it seemed unlikely that it would influence the outcome of the case after Lord Sumption laughed it off as rendering the court case unnecessary. One barrister described the mere mention of the motion by Eadie as “idiotic”.
- Triggering Brexit without consulting the devolved assemblies in Cardiff, Edinburgh and Belfast would dissolve “the glue” which holds together the UK’s unwritten constitution, the supreme court was told.
- Helen Mountfield QC, counsel for the crowd funded People’s Challenge, argued that EU laws that have been in force since joining in 1972 are domestic laws – only Parliament can remove them, not ministers.
- Manjit Gill QC, on behalf of certain EEA nationals, argued his clients face the risk of being deported when Brexit takes effect, adding that children are entitled to know their future.
- “We are not being asked to overturn the referendum,” the president of the supreme court said as he adjourned proceedings for the 11 justices to consider their judgement. Lord Neuberger said it would take time but they would do their best to do it as quickly as possible. It is expected next month.
Finally, they are discussing the motion passed last night endorsing the prime minister’s self-imposed March deadline for triggering article 50. Eadie says:
It is highly significant, no doubt it isn’t legally binding but it is legally significant …Parliament has indicated its view.
This gives a lie to the argument that the government is seeking to trample over parliamentary sovereignty, says Eadie.
If you declare the use of the prerogative unlawful …you are in effect requiring primary legislation. Primary legislation would thereafter be the only way to go.
Lord Sumption says:
If this is enough for your purposes, you wouldn’t be proceeding with this appeal.
Cue laughter. Eadie suggests the case could have concluded on day three (yesterday, when the motion passed) had the justices indicated they were happy that the motion was sufficient but he suggests Lord Pannick, representing lead claimant Gina Miller, may have had something to say about that.
Eadie continues:
The 2015 [European Union Referendum] act speaks volumes about the intention of parliament …It left the royal prerogative power to give notice in the hands of the government.
He challenges Lord Pannick’s assertion that the act was of purely “political significance”.
Odd, perhaps, that no one has mentioned that parliament has begun to assert a right that MPs should vote before foreign military action. Surely a further example of executive power being curtailed by parliament?
Government has argued throughout case that the prime minister is free to act on the “international plane”.
The government withdrawal from the European Free Trade Association (Efta) is an example of the government giving notice to withdrawal from a treaty that would have a consequence on domestic rights, without getting consent from parliament, argues Eadie.
The counsel for the government says parliament made provision for the kind of things that require primary legislative authority in the European Union (Amendment) Act 2008 and the European Union Act 2011 so it is “inexplicable” why they would not have said it was required to trigger article 50.
Parliament has addressed “what it wanted to control and how it wanted to control it”, Eadie contends.
Eadie says the European Communities Act 1972 was an “implementing statue” that made no provision “seeking to control [the government on the international plain]”.
It creates rights but they are “contingent and inherently limited”, contingent on the premise which is continued membership of the European Union, Eadie continues.
The character of the Act is not changed by the fact that it introduces a new source of law, he asserts.
It was not a constitutional necessity for the government to legislate for the ECA for ratification, Eadie continues. It was just government practice, he asserts.
Eadie says a minister could alter EU law but not the law of the land.
He’s back on dogs, as Lord Neuberger asks him if his contention is that if there was an EU dangerous dogs directive the minister could repeal that but not the Dangerous Dogs Act because that is domestic law. In other words, suggests Neuberger, you (Eadie) are saying that ministers could trigger article 50 to begin the process of taking the UK out of the EU but could not repeal the European Communities Act 1972 (a UK parliament act).
Eadie broadly agrees.
The opaque language used to capture the complex interplay of executive powers and parliamentary legislation might sound like it was designed to stifle the comprehension of the passenger on the proverbial Clapham omnibus.
Not all of the legalese was Latin, although Lord Neuberger did resort to “de bene esse”. ‘Ambulatory’, suggesting something easily removed, came up frequently.
There was much talk of painful-sounding ‘clamps’ on the royal prerogative and of turning the European Communities Act 1972 into a ‘conduit’ – presumably in order to flush it’s contents into the North Sea.
Since the supreme court always provides lucid summaries of its judgments, the outcome, at least, should be perfectly clear.
Lord Sumption asks Eadie if he accepts that if parliament hasn’t decided whether there is a prerogative power the government loses.
Eadie says if the power hasn’t been taken away, it remains with ministers.
Source: https://www.theguardian.com/politics/live/2016/dec/08/brexit-article-50-supreme-court-hearing-day-four-live-updates
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