Legal Cheek @legalcheek
Breaking news: A member of court staff has fallen asleep #BrexitCase
Just reading the tweets about it, I can understand why
Hope this makes some sense. Its a bit difficult to understand if you are not a lawyer (and I'm not)
Going through the tweets of Jo Maugham, a lawyer at one of the firms who are making the government challenge, and Conor James McKinney is a lawyer who writes for FullFact.org trying to make some sense of it. I have put together to try and help with that, so if one doesn't make sense the other may help.
For the Claimant - David Pannick QC
The Chief Justice, Lord Thomas of Cwmgiedd, Master of the Rolls Sir Terence Etherton, and Lord Justice Sales are hearing the case.
There is a court stenographer. Transcripts will be released at lunchtime and after court.
Conor James McKinney account:
Article 50 case: apparently we are going to hear about the Act of Union and Bill of Rights 1689. On a grand tour of the constitution today.
Maugham’s account:
David Pannick QC kicks off. Case raises an issue of fundamental constitutional importance concerning limits of the power of the executive. Parliament may approve Bill, it may reject it, or it may approve it with conditions: eg, as to timing, or as to reporting to Parliament.
Sales LJ: is it relevant to have some idea of the international law position in 1972 so that we can understand the background to the ECA?
(Maugham suggests this response is a sign that Sales may be against the Claimants.)
Conor James McKinney account:
Lord Justice Sales is asking for information on the route to leaving the EU before Art 50 existed, which he considers relevant background.
[RTB: This seems different to the way Maugham phrased it]
Maugham’s account:
Pannick says that whether Parliament needs to agree the terms of withdrawal is irrelevant to the question of how withdrawal is given. Structure of A50 is, if you decide to withdraw there are consequences, irrespective of what then happens domestically.
(Maugham: Pannick is saying, in effect, A50 is irreversible. Legally helpful to claimants. Politically helpful to Government).
Conor James McKinney account:
Lord Pannick pressing his point that Art 50 being triggered means that a country is invariably out of the EU, no matter what Parliament does.
Pannick argues that "there's no going back". (This is vital to his case, because it's all about ECA 1972 being made null and void by govt.) He spells it out: notification "has a dramatic impact in domestic law", and removes rights for individuals conferred by Parliament in 1972.
"Notification produces the result which offends against domestic constitutional law", Lord Pannick says. Expect this to be contested ground.
Maugham’s account:
Pannick points out that there is no suggestion in the Government's Skeleton that there is any power to withdraw a notification once given. Section 8(1) of that Act mandates a consequence. But the Referendum Act specifies no such consequence. Defendant does not say he has a statutory power. Skeleton relies on prerogative power. Common law limits on use of Prerogative powers cannot be affected by an Act that says nothing about them.
(Maugham: FWIW, I've always found that argument a compelling one: the limits of the Prerogative can't be affected by the result of the Referendum).
Pannick: Gov Skeleton is just wrong to say that the question before Parliament is the same question as was posed in the Referendum. The question for Parliament is not, should we stay or go, but timing, negotiating terms, etc. Not addressed in Referendum.
Thomas LCJ: you say the Ref Act confers a mandate and it is for Parliament to determine what the mandate is?
Pannick: yes.
(Maugham: This is why I have been banging on about the 'source' of the mandate Theresa May claims to have. I agreed with Pannick that that is necessary and alarming consequences of Government's position.)
Conor James McKinney account:
Lord Pannick turns to EU Referendum Act 2015, which he notes contains no provision for any consequences from the vote. AV referendum did.
Sir Terence Etherton has asked whether it's relevant that there is now a new "democratic response" by the people in the form of a referendum
Lord Justice Sales clarifies that Lord Pannick's argument is that Parliament must legislate for Article 50 - not just pass a motion. It is.
Maugham’s account:
Pannick is making points much made by the great EU jurist Van Gerven about the special quality of EU law. Under our domestic law a Treaty is not self-executing. But what Parliament did in ECA is make EU law part of domestic law. My fundamental point is that rights were conferred on 1.1.73 and they simply cannot be taken away by an Act of the Executive.
Pannick says (in response to a question) that some of these rights can't be reenacted by Parliament.
Conor James McKinney account:
We are now taking a trip through some classic EU law - Van Gend en Loos and Simmenthal. Point is the unique character of EU law.
Lord Pannick now going over the rights that EU membership gives citizens, including free movement. Lord Thomas asked for specifics earlier.
Lord Thomas now saying that Parliament could simply reenact some EU law rights, & wants to know what rights it could not reenact post Brexit. Lord Pannick replies: right to go to Court of Justice would "go, forever", as would free movement rights. Parliament can't give them back.
[RTB: Seems important point, sure will be a point of contention. Interesting to see.]
Also tells the Lord Chief Justice that's "not the right question".
Lord Pannick is now pointing to Thoburn case - 1972 Act is immune from implied repeal. Proof of its constitutional significance.
Pannick now addressing this in response to Q by Lord Justice Sales. Says EU law rights would fall away Repeal Bill or no.
@ProfMarkElliott He makes the same point you did in recent blog - there will be nothing for ECA 1972 to bite on if Treaties no longer apply
Art 50 case resumes after brief break. Update on Northern Ireland case: it's only about devolution, issues being discussed here were stayed.
Lord Pannick turns to the nature of prerogative powers, defined by Dicey as the "residue of discretionary or arbitrary authority". He says case law establishes the principle that prerogative powers cannot be used to deprive people of rights they enjoy in domestic law.
(Conor James McKinney: Again, this is the fundamental argument upon which the claimants' case rests. We will see what the government has to say about it.)
Pannick notes in passing EU rights aren't "any old statutory rights". They are fundamental, constitutional ones that govt proposes to remove
The point [that rights such as free movement are now constitutional ones and Parliament can’t just give them back] has just been reiterated - right of access to EU court would go upon Brexit. Also the right to stand for the European Parliament.
Lord Pannick opens the Case of Proclamations (1610). Amazing to hear words 400 years old being read verbatim to the court as legal argument.
"The King by his proclamation cannot change the common law or statute law or the customs of the realm."
Bit of back and forth about the cases on prerogative powers that Lord Pannick is using. Judges have a few questions on their applicability.
Govt says of this authority that commencing the Art 50 process does not in itself change any of the laws of the realm, so it's not relevant.
Lord Pannick says this misses the point because the inevitable result of triggering Art 50 is to strip away EU rights. This clash is central
The next authority cited by Lord Pannick is the Laker Airways case from, I think, the 1970s. This is somewhat less inspiring.
ernst soup@PaoloBrennan
@mckinneytweets It is the decision that leads to the inevitable loss of rights. Pan nick is arguing about the wrong thing
Conor James McKinney@mckinneytweets
We haven't had any discussion of the "decision" under Art 50 yet. But we will. Govt says it has been taken, claimants disagree.
Conor James McKinney account:
But the point of it is, again, that the government cannot take away "by the back door" (per Lord Roskill I think) rights given by Parliament and, Lord Pannick says, the Laker case shows that legislation can abolish prerogative powers even if it makes no reference to them at all.
The point of them all is, in substance, the same: that the courts shouldn't let government, acting by fiat, disturb laws made by Parliament
Lord Justice Sales says that all these cases rely on implying / reading into the relevant legislation a restriction on prerogative powers.
So he doesn't see how they assist with Lord Pannick's wider point. Lord Justice Sales has seemed a little sceptical throughout.
[RTB: Echoing now what Maugham said about him thinking Sales is against the Claimant. Also seems there seems to be a concern that Pannick is arguing about the wrong thing, but this is apparently going to be tackled later on. Doesn’t sound like the challenge is winning over the judges so far]