My notes from watching the High Court hearing on Art. 50

RCJ Court Case re. Executive Triggering of A. 50

Day 1 – 13/10/16

Claimant 1

  • This is purely a legal question, not a policy one. Therefore, the court has jurisdiction to deal with it
  • Is the Royal Prerogative restricted?
  • The minister has no prerogative power to derive people of the rights granted by the European Union
  • Claiming that the secretary (defendant) has no lawful right to trigger article 50(2) at the present time
  • Defendant refers to
    • First Wheeler case v. a) tab 16.
      • Legitimate expectation that the govt would legislate on the triggering of A. 50
    • Unison case
      • Right to be consulted before Bill introduced into Parliament
        • Simply about whether Secretary has the power at the present time to trigger under A 50(2)
  • Memorandum by foreign commonwealth office
    • [21], p.52 parliamentary process is required for most recent EU treaties, i.e. Amsterdam
    • Shows that any substantial amendment to the Treaties requires Parliamentary approval

Claimant 2

  • Under doctrine of parliamentary sovereignty, no one has right to set aside the legislation of Parliament
    • What Parliament has enacted, only Parliament can take away
  • Withdrawal, by A 50 notification will lead to a loss of rights under 1972 Act and 2002 Act
    • This loss of right (under doctrine of Parliamentary sovereignty), only Parliament can sanction the impact of this decision
  • Parliament has not given this sanction and the referendum does not constitute this
  • Parliamentary sovereignty (Doctrine)
    • No one has the rights to override legislation of parliament or act alone on its behalf
    • The opinion of electors can be expressed through Parliament and Parliament alone
    • There is nothing which Parliament cannot legislate for
    • The executive cannot override or take away domestic law rights which have been established by Parliament
      • This is a legal doctrine
        • “The bedrock of the constitution”
          • 1911 the supremacy of Parliament
          • Then as now the crown and parliament can make or unmake any law it wishes
  • The interrelation of Parliamentary sovereignty and executive decision-making
    • 50(1) and 50(2) go hand in hand
      • It is unreal and artificial to divorce them from each other
      • A 50(10 decision must be capable of being notified under 50(2)
        • In order to be capable of notification, 50(1) notification requires 50(2) domestic law decision
          • Under Doc. of Parliamentary sovereignty, Parliament is the only body that can withdraw under A.50
          • It is a constitutional requirement that parliamentary sanctions be given for the loss of rights under 50(2)
            • Matter is best conceptualised this way
          • Before notification is given under 50(1), Parliament must sanction the impact of the loss of rights through 5(2) by legislation
  • 3 circumstances
    • 1) Parliament could take decision under 50(1) to circumvent requirement
    • 2) prior to 50(2) notification, parliament could approve previous decision taken by decision of exec. or referendum
      • Not the case with referendum result
    • 3) Approval of decision by Parliament
      • Would amount to a ratification by Parliament of the decision
        • This would be the final step of the process under 50(1)
        • Decision would only be complete and satisfy constitutional requirements once parliament has ratified
    • 4) Parliament could directly authorise an authorisation under A5(2) before it was given
      • Would complete process under domestic law
  • Parliamentary approval is ESSENTIAL to perfect a decision under 50(1)
  • Loss of rights
    • Rights made by the UK parliament (mostly under 1972 Act
    • Will all have to go with the UK’s withdrawal
      • Only parliament can bring that about by notification
    • 3 categories of domestic law rights
      • 1) Right that parliament would be able to replicate after withdrawal
        • Employment law rights and equality law rights
        • Because of Parliamentary sovereignty, since these rights were given by Parliament, they can only be taken away by Parliament
          • They cannot be taken away by the executive
            • Prohibited by D of PS.
      • 2) May be replaced or replicated by Parliament depending on the withdrawal deal
        • Not in parliaments unilateral power as they depend on the deal made
        • Current rights will have gone whether or not they are replaced
        • They will be replaced under differential arrangements
          • Will no longer have their source under the 1972 Act
        • Parliamentary sovereignty does not permit the exec to override Parliamentary statute on the promise that it will be replaced
          • Only Parliament can interfere with or alter the legal basis for these rights
        • Rights would cease to have existed
      • 3) By very nature will be lost irreplaceably when leave the EU
        • Rights to stand in European parliament and stand in elections there
        • Great Repeal Bill
          • 1972 act will be repealed
          • Current EU will be transferred wholesale into UK law to be reviewed in due course
          • This amounts to the executive setting itself up as a de facto A 50 legislation stage
          • It gets the ball rolling irreversibly and says “right parliament, it’s up to you to sort out the legislative consequences”
            • Parliament won’t have the choice to go back
          • Parliament cannot be forced to enter into this situation
          • By acting as it’s supposing to do, it will be subverting the will of Parliament as expressed in 1972 act
    • It is because of Parliamentary sovereignty that the prerogative is ousted
    • The governments answer by ref. to the proposed answer simply melts away
  • Referendum
    • The result is not legally binding on Parliament
    • Nor is it an alternative to the proceedings of Parliament
    • Use of direct democracy are not intended to be a replacement for representative democracy, but a compliment
      • In this light, those acting through referendum, the people act as a third chamber of Parliament
        • The people can only veto legislation, needs to pass the people’s house (referendum)
      • Government could agree in advance to respect the result
    • The referendum itself cannot be made active without further legislation
    • The 2015 EU ref act and the 1975 Act are very similar
      • Therefore Parliament is not bound to result in the same way
    • Government memorandum
      • Referendum should not bind Parliament but will have significant influence over future government consideration
    • Government must be able to chose how to respond to a referendum result
    • Pre-legislative or consultative referendum to inform the government merely
    • Parliament clearly chose to retain its sovereignty to chose whether to remain in the EU
  • The executive needs to find something which empowers someone other than parliament to take this decision forward
    • There is no such provision
    • The defendants position confuses government policy with the will of Parliament
    • Parliament made no provision as to what should follow
      • We don’t know whether Parliament approved the decision
        • It certainty didn’t legislate
    • The 1975 decision would have required the approval of Parliament is it was to leave
  • The amalgamation of events is unknown to British constitutional law because it attempts to overrule Parliamentary sovereignty
  • The power of the people expressed through Parliament is the ultimate political act
  • Legal and political sovereignty rests in Parliament
  • The central issue is who can lawfully take the decision to leave the EU
    • In view of Parliamentary sovereignty, only Parliament can do so

Claimant 3

  • Claims to be representing the rights of EU citizens
  • It is the notification of withdrawal that fundamentally leave to the removal of rights of EU citizens
  • 1688 Bill of Rights
  • Reversibility
    • It is the CJEU that is the court to decide the interpretation of EU Treaties including the reversibility of A.50
    • The question can only arise once notice has been given
    • Assume that it cannot be reversed
      • Absolutely essential to decide
      • How can we proceed on an assumption that is fundamentally essential
  • Previous claimant asserts that there is no reversibility
  • The existence of a statute cannot be reversed by a prerogative power
    • Clear from the Bill of Rights
    • Magna Carta
    • 1972 Act
    • Wales Act
    • Standard community obligations
  • Even if the Royal prerogative exists, they cannot be lawfully used to remove rights of the devolved administrations

Day 2 – 17/10/16

Get skeleton argument – (Bindmans??)

Attorney General

Missed – in the morning – Royal Prerogative not void

Second defendant

  • Defendants claims responses
    • Parliament is sovereign
      • Not relevant
    • Exec cannot change law
      • Parliament can decide to continue to exercise, even if it would necessarily have an impact on domestic or international law
        • Has Parliament given the exec the authorisation to enact the royal prerogative in this case?
        • Has Parliament consented government to enact Treaties, in the knowledge that the effect would be considerable??
        • Treaties are not self-executing
          • He’s saying that treaties are not self-executing
          • However, parliament could make them self-executing
        • Has the prerogative been abrogated?
      • Parliament has decided not to abrogate the prerogative established by Lord Oliver
      • Parliamentary sovereignty just doesn’t affect this issue
    • Exec cannot take away rights of citizens
      • Judgement is not an espousal of a more general principle
      • Walker v Bear does not say anything about whether Treaties are self-executing
  • Even if Treaties aren’t self-executing, they can have significant effects on rights
  • In one case, the Crown redefined the borders of the UK without statute
    • Consequence is to alter law
  • There should be caution in assuming the the prerogative CANNOT be used to affect rights in the international legal plane
  • Renegotiations have taken place without parliamentary approval
  • Legitimate exercise of the Royal Prerogative can have significant implications for rights and responsibilities
  • The Royal prerogative can be exercised to have real effects on rights. Parliament can then decide to respond as it wishes.
  • Just because an executive decision has the effect of removing rights, does not by necessary implication void the valid use of the Royal Prerogative
  • The Royal prerogative act would be executed on behalf of the whole Crown, including Parliament
  • When the Royal Prerogative is enacted, it acts on behalf of the status if or until Parliament enacts contrary legislation
  • Parliament has entrusted to the Crown to enter or withdraw from international treaties
    • Ex antier control
    • Ex post control
  • It is not offensive to Parliamentary sovereignty for exec to enact a Treaty right
  • Rees-Mogg case
    • Shows that necessarily implication doesn’t work
  • European Union Referendum Act 2015
    • It was a binary choice and Parliament must have considered either outcome
  • The giving of notification merely starts the process and has no immediate effect on the rights of individuals
    • Similarly, the negotiation is a matter of prerogative also
    • In the course of negotiations, the exec may indeed take actions to exercise the prerogative power which have more serious implications than the notification
      • How can that be done, yet not the notification step?
    • Vital question: Has Parliament abrogated the Crowns royal prerogative in this regard?
    • Government seeks withdrawal under foreign affairs prerogative
  • The triggering of Article 50 has no substantive effect on the rights of EU nationals or on UK nationals.
    • Parliament did not envision needing a second referendum or vote in order to invoke A50
    • The rights conferred under the 2006 act would continue
    • Does not remove immigration rights
    • The triggering of A 50 will not change those rights currently enjoyed by UK citizens under domestic law
    • At the stage of notification, it is not possible to assess how rights will be affected
    • Notification is the necessarily first step
  • Rights
    • Category 1
      • Not affected
    • Category 2
      • Will most likely depend on the outcome of the negotiations
        • Not an inevitable consequence
    • Category 3
      • There is nothing to think that the necessary royal prerogative has been abrogated
      • If you withdraw from the club, you don’t get to elect those leaders
        • Doesn’t apply to category 2 rights
    • Therefore, Parliament must expressly prevent the Article to be triggered
    • Did parliament contemplate their advocating of the right of the government to enact a Treaty right?
    • It simply cannot be assumed that unapproved removal of rights will take place
    • If Parliament intended to take away rights under the Royal Prerogative, you would expect it to be done with great clarity
  • Relief
    • Saying no would require the court to introduce a Bill into Parliament to give effect to the withdrawal

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