The Supreme Court today announced (here) that it has granted the Government permission to appeal against the judgment of the High Court in the Article 50 case.  The case will be heard between 5-8 December, with judgment in the New Year.

The High Court has just given judgment in the case of R(Miller) v Secretary of State for Exiting the EU.  The Court has ruled that the Government has no power under the Royal Prerogative to invoke Article 50 TEU.  An Act of Parliament is required.

Please click here to read the Case Note on the judgment.

In a judgment released this morning (here) the High Court of Northern Ireland (Maguire J) rejected various challenges brought under Northern Ireland law to the Government’s position that it can invoke Article 50 TEU under the Royal Prerogative.

The challenges that were decided by the Court were all based on aspects of the constitutional settlement in Northern Ireland.  The Court did not consider the more general issues that have been raised before the High Court in England and Wales (where judgment is awaited).

The first challenge was based on an argument that the Northern Ireland Act 1998 and the Good Friday Agreement displaced the Royal Prerogative in relation to Article 50.  The Court rejected that argument: Article 50 set in train a process that might lead in a number of directions, and any change in domestic law would have to be made by Parliament.  Although continuing membership by the UK of the EU was assumed at the time of the Good Friday Agreement, membership could not be described as a “constitutional bulwark” of those arrangements.

The second challenge was an argument that any legislation passed in order to trigger Art.50 would need the consent of the Northern Ireland Assembly.  Given the answer to the first question, that issue was academic: but the judge did not consider that consent was a legally enforceable requirement.

The third challenge was an argument that, by reference to Northern Ireland legislation, the Government gave undue weight to the referendum result in taking the decision to invoke Article 50: the judge however considered that the decision to invoke Article 50 was of high policy and not justiciable.

The fourth argument was based on a claimed failure by the Northern Ireland Office to follow Northern Ireland equality legislation: the judge however held that the decision to invoke Article 50 could not be said to be carrying out a function relating to Northern Ireland and was outside the scope of that legislation.

The fifth argument was that the consent of the people of Northern Ireland was needed for Article 50 to be invoked: the judge found no basis for that argument.

The Northern Ireland case is likely to be joined, in the UK Supreme Court, with the (inevitable) appeal against the judgment of the English High Court.  The judgment deals only with points that are distinct to Northern Ireland and generally gives little clue as to how the English case may be decided.  That said, it is worth noting (a) that the Judge approached the question as a matter of statutory construction (which accords with the thrust of the Government’s submissions to the English High Court and (b) that the Judge seems to have proceeded on the basis that a notification under Article 50 was the start of a process rather than, of itself, producing changes in domestic law.  Readers of this blog will remember that, in the English cases, both parties proceeded on the basis that Article 50 was irreversible.  The litigation, on both sides of the Irish Sea, may well end up turning on precisely how the Article 50 process is characterised – although, for reasons I set out here I still consider it highly unlikely that the Supreme Court will need to make a reference to the Court of Justice of the EU on the question of whether an Article 50 notification can be withdrawn by the Member State concerned.

The hearing continued yesterday of the judicial review challenging the Government’s position that it can trigger Article 50 without recourse to an Act of Parliament. The full transcript is available here, or you can read our summary below.

The day began with the Court raising the issue that the lead claimant, Ms Gina Miller, has received threatening and abusive emails. The Lord Chief Justice said that this was “wholly wrong” and that if “this conduct continues, those who do it must appreciate that the full vigour of the law will be used to ensure that access to Her Majesty’s courts are freely available to everyone“.

Helen Mountfield QC continued her submissions, on behalf of the People’s Challenge, that triggering Article 50 will inevitably remove a range of fundamental rights, which apply directly to UK citizens and which are recognised in domestic law, and that removing rights in this way falls within the domain of Parliament rather than the Crown. She also argued that using the royal prerogative to trigger Article 50 would be contrary to the English Bill of Rights, the English and Scottish Acts of Union, and the devolution statutes.

Patrick Green QC appeared for the “Expat Interveners” – persons residing in other EU countries with EU law rights in those countries derived from UK citizenship – and focussed on the effect of triggering Article 50 on their rights of residence and right of access to healthcare.

The Attorney-General, Jeremy Wright QC MP, setting out the Government’s case emphasised the political history to the referendum: that it was a manifesto pledge given by the Conservatives in the 2015 General Election, which they won; that the referendum was established by an Act of Parliament and gave a clear majority in favour of Leave; and that since the referendum the Government’s clear position has been that the referendum result would be acted upon. He argued that this was not, as the Claimants argued, a narrow procedural challenge, but “in reality” an attempt “to invalidate the decision already taken to withdraw from the European Union and to require that decision to be taken by Parliament“. On the technical point of law, the Government argued that the Claimants had overstated the principle that the prerogative may not be exercised inconsistently with statutory rights; that the exercise of prerogative powers in this case would not in fact be inconsistent with the relevant statutory scheme; and that the case was not properly justiciable by the Courts. It will continue with its submissions on the points regarding citizenship rights today.

One of the most significant points of the day was in fact one which was not in dispute: early in the Government’s submissions the Court asked whether it agreed with the lead Claimant’s position that an Article 50 notification is unconditional and, once triggered, cannot be withdrawn by the UK. The Attorney-General indicated that the Government agreed with that proposition. If the Court is unsure on the point it may still consider whether it needs to be referred to the CJEU, on which my colleague George Peretz QC has written. But the Government’s position is clear: once it hits send on the Article 50 email, it can’t change its mind.

 

As we wrote yesterday (see here) the hearing has now started of the High Court challenges to the Government’s position that it can trigger Article 50 by use of the royal prerogative and without the need for an Act of Parliament. Those challenges are based on domestic principles of constitutional law.

If you’re interested in seeing the detail of what happened on Day One of the hearing, the full transcript is now available here.

One point which seemed to exercise the Court in particular is whether it would be open to the UK, once an Article 50 notification has been given, to withdraw that notification. That is a question of EU, rather than domestic, law but has implications in the case in terms of the timing of any Parliamentary approval – would approval have to be in place before the Article 50 notification was given or could it come later? However, the answer to that legal question would undoubtedly also have implications in terms of the dynamics of the UK’s withdrawal negotiations with the EU 27 and in terms of the debate here in the UK as to the terms of withdrawal.

Today sees the start of the hearing in the High Court of the so-called “Article 50 challenges” – the judicial review proceedings brought by two claimants (and supported by several groups of interveners) which argue that a Parliamentary vote is needed before the Article 50 process for Britain leaving the EU can be triggered. The hearing will not finish today but will continue on 17th and 18th October.

The Court

The challenges are being heard not by a single High Court Judge, as most judicial reviews are, but by a very high-powered Divisional Court, consisting of the Lord Chief Justice (Lord Thomas), the Master of the Rolls (Sir Terence Etherton) and Lord Justice Sales. A “leapfrog” appeal to the Supreme Court (i.e. direct to the Supreme Court and bypassing the Court of Appeal) has already been arranged for December 2016.

The arguments

The Government’s position is that Article 50 can be triggered using prerogative powers – meaning essentially that this is a matter for the executive alone.

The Claimants dispute this, and raise a number of issues, including:

• Can the Government notify the decision to withdraw pursuant to royal prerogative powers without Parliamentary approval or are those historic powers limited? In particular:
  • Has any executive royal prerogative power to do so been removed by legislation, in particular constitutional statutes such as the European Communities Act 1972, the Bill of Rights 1689, the Acts of Union and the statutes creating the devolution settlements for Northern Ireland, Scotland and Wales?
  • Does the royal prerogative extend to allowing the Government to remove fundamental citizenship rights derived from EU law without Parliamentary authority?
• Would any exercise of the prerogative be abusive by undermining Parliamentary Sovereignty, the proper role of the Executive in the constitution, and/or the rule of law?

There is also a dispute about whether constitutionally-valid decision has already been made for the UK to withdraw from the EU.

If you are interested in the detail of the arguments, the principal parties’ skeleton arguments can be found here:

The Government’s skeleton argument

The People’s Challenge clarification note

The People’s Challenge skeleton argument

Lead claimant skeleton argument

Three of our colleagues are involved: Anneli Howard (together with Lord Pannick QC, Rhodri Thompson QC and Tom Hickman) for the lead Claimant, and Gerry Facenna QC and Jack Williams (together with Helen Mountfield QC and Tim Johnston) for the Peoples Challenge interested party.

 

Today the Government has published its full skeleton argument in the Article 50 litigation to be heard in the High Court on 13, 17 and (now also) 18 October 2016. The Government’s full skeleton argument can be found here.

The People’s Challenge Interested Parties have also filed in response a note clarifying a mistaken assertion in the Government’s skeleton. This clarification note can be found here.

Further documents in relation to the litigation (including the skeleton argument on behalf of the People’s Challenge Interested Parties) can be found here.

The People’s Challenge Interested Parties are a number of ordinary UK and EU citizens living in England, Gibraltar, Northern Ireland, Scotland and Wales, as well as British citizens resident in France. They are supported by funding raised through the crowdfunding platform, Crowdjustice.

Gerry Facenna QC and Jack Williams are instructed by Bindmans LLP on behalf of the People’s Challenge Interested Parties. Anneli Howard is also acting in the litigation on behalf of the claimant Gina Miller.