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Update following High Court ruling on 3 November 2016

On 3 November 2016, the High Court in London ruled in one of the most significant UK constitutional law cases for decades on the triggering of Article 50. The ruling did not, however, concern the result of the EU referendum. The question before the Court was:

“whether as a matter of UK constitutional law, the Government is entitled to give notice of a decision to the EU under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament.”

(Case summary, R(Miller) v. Secretary of State for Exiting the European Union)

In other words, is this a decision that the PM and her government can make alone without involving Parliament?

All parties to the case, including the Government, accepted that the Court had jurisdiction or the right to rule in this case.

In addition, the Government conceded that, once Article 50 is triggered, this notification cannot be withdrawn, and that it is also not possible to give conditional notice under Article 50 i.e. a notice that is qualified by stating that it is subject to parliamentary approval of the withdrawal agreement that is made during the Brexit negotiations.

These are key points, because this means that, once Article 50 is triggered, statutory rights of UK citizens under the European Communities Act 1972 will inevitably be lost once the Art 50 withdrawal process is completed.

The Court ruled that the Government does not have power under the royal prerogative to give notice under Article 50 for the UK to withdraw from the EU. This was because:

  1. The most fundamental rule of the UK’s constitution is parliamentary sovereignty and that what Parliament does it (and only it) can undo.
  2. A key aspect of this is that the Government cannot use the royal prerogative to override parliamentary legislation.
  3. The royal prerogative can be used to enter into and withdraw from international treaties and for international relations generally but that is because this does not have an effect in domestic law.
  4. In this case, however, the Government accepted and conceded that if Article 50 is triggered, this will affect domestic law (and indeed the statutory rights of UK citizens under domestic law).
  5. To overcome this problem of using the royal prerogative in a situation which would have an effect in domestic law, the Government argued that the European Communities Act 1972 should be interpreted so as to mean that Parliament, when it enacted it, intended that the royal prerogative could be used to withdraw from the EU Treaties.
  6. But the Court did not accept that argument and said that there was nothing in the Act to support it. It considered that not only was the Government’s argument contrary to the 1972 Act but also to the fundamental principles of (1) parliamentary sovereignty and (2) that the Government cannot use the royal prerogative to change domestic law.

This is a landmark ruling, and an unequivocal judgment. However, it is not the end of the story, as the Government has been given the right to appeal and to bring a “leapfrog” appeal to the Supreme Court, or an appeal to the Supreme Court without having to go through the Court of Appeal first. This will be heard in between 5-8 December with judgment likely in January. All 11 Supreme Court judges will hear the appeal.

The tabloid press has been criticised for the personal attacks made on the judges the day after the judgment with front page headlines such as these:

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The Lord Chancellor, whose job it is to uphold the independence of the judiciary, has been criticised by the Bar Council for failing properly to condemn the attacks.

In the meantime, both the Welsh and Scottish governments have been given leave to intervene, and the Scottish government is also arguing that the devolved administrations should be consulted prior to triggering Article 50. In addition, a case before the Northern Ireland courts, challenging the Government’s right to invoke Article 50 under the royal prerogative based on Northern Ireland law arguments, will also have a hearing in the Supreme Court.

Supreme Court Hearing (5-8 December 2016)

Last week, the appeal hearing in the Article 50 case, R (Miller and another) v. Secretary of State for Exiting the European Union took place over the course of four days (5-8 December 2016). The Government had been given the right to appeal the judgment of the High Court (link to judgment)and to bring a “leapfrog” appeal to the Supreme Court.

All 11 Supreme Court justices sat and heard submissions from the Government (the appellant), and for the respondents in the appeal, Gina Miller and Deir Tozetti Dos Santos, as well as two interested parties and five interveners.

The issue before the Supreme Court was the following:

“Does the Government have power to give notice pursuant to Article 50 of the Treaty on European Union of the United Kingdom’s intention to withdraw from the European Union, without an Act of Parliament providing prior authorisation to do so?”

The main points of the Government’s case appeared to be that:

  • the exercise of the prerogative to enter into and withdraw from international treaties and for international relations was in principle “untrammelled” or unrestricted;
  • the prerogative could be used to change domestic legislation;
  • Parliament, when it enacted the 1972 European Communities Act, was merely facilitating the UK’s membership of the EEC, in the event that the Government, in the exercise of its prerogative, took the decision to take the UK into the EEC (i.e. the decision was the Government’s not Parliament’s); and Parliament had somehow, by its silence on the matter, actually exercised its sovereignty and passively consented to the prerogative being used to take away the EU rights of UK citizens legislated for by Parliament.

In response, for the main Respondent, Gina Miller, Lord Pannick argued that: –

  • the 2015 Referendum Act did not give ministers the power under the prerogative to trigger Article 50;
  • the prerogative cannot be used to remove statutory rights and certainly cannot be used to change the UK constitution;
  • the Government must demonstrate that Parliament expressly handed over powers to remove statutory rights;
  • Parliament did not intend that the scheme set up by the 1972 European Communities Act could swept away by use of the prerogative;
  • there are different ways in which the prerogative can be limited – one limit is that there is no prerogative power to remove statutory rights, and this is the case here;
  • none of the other EU related acts over the last forty years gave ministers the power under the prerogative to trigger Article 50; and
  • finally, as regards Parliament’s role, only an Act of Parliament could take away EU rights linked to EU membership created in the last four decades.

Both the Lord Advocate (for the Scottish Government) and the Counsel General for Wales (for the Welsh Government) had been given leave to intervene on devolution issues. The Scottish Government argued that Article 50 could only be invoked through an Act of Parliament and that Act had to be preceded by a legislative consent order in the Scottish Parliament, while the Counsel General for Wales argued that the devolved administrations should be consulted prior to invoking Article 50. In addition, references from two Northern Irish cases, relating to devolution issues and the argument that the particular circumstances of Northern Ireland should be recognised and taken into account, were heard.

The Court’s judgment is expected in the New Year. The Supreme Court will issue an alert prior to its publication. Transcripts of the hearing, and information concerning the arguments of the parliament and the judgment, can be found here.

EU citizens in the UK find their public voice

So what happened on 12th December?

The 3 Million group of EU Citizens in the UK combined handing in a  letter to No.10 Downing Street with the release of the report by British Future; while doing a media blitz.

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 Did it work?

EU citizens were in the UK media all morning (it started with the BBC Radio 4’s Today programme) and through the afternoon on print radio, TV and online. 

 A good summary: https://www.euronews.com/2016/12/12/brexit-theresa-may-unmoved-by-appeal-over-eu-nationals

Sky News: https://news.sky.com/video/morally-wrong-to-deny-residency-to-eu-citizens-already-in-the-uk-10693978

Why were EU citizens in the news?

Two things: the British Future report on our future status and our handing in of a letter to No.10

Yesterday, British Future published a report on the future status of EU citizens in the UK after Brexit following a 3-month inquiry lead by Gisela Stuart (chair of the Leave campaign) and a panel of cross party politicians, trade unionists, academics and business leaders.

 The report made 14 recommendations to the Government in order to give a new bespoke Indefinite Leave to Remain to all EU citizens living lawfully in the UK up to when article 50 is triggered. It includes some suggestions for the Government to effectively register the 3 million EU citizens so everyone can stay

Please note that the report only looks at the future status of EU citizens after Brexit. Freedom of Movement was excluded from the scope of the report and therefore, there is no mention of the rules that would apply to future EU citizens coming in to the UK after the cutoff date.

 

 

A little more about the report

I’m repeating this summary of the report in case you haven’t seen it yet. These are the 14 recommendations made by British Future in its report on the status of EU citizens after Brexit:

1. Cutoff date when Art.50 is triggered to benefit of the following rights:

2. New legislation to convert Permanent Residency (PR) into bespoke Indefinite Leave to Remain (ILR) status

3. EU citizens on the way to PR to have a 5-year transition period from Brexit

4. There are significant differences between PR and ILR (‘good character test’ english test, salary threshold, cost of application). Bespoke ILR for EU citizens not to exceed cost of passport (£72)

5. Bespoke ILR not to have English test or salary threshold

6 Children in care. Home Office to offer PR and ILR and entitled to legal aid

7. Family migration – 5 year transition period after Brexit to continue family migration.

8. Social and education rights. 5 year transitional period to upkeep right.

9. Pensions uprating for EU citizenship taking their pension in another EEA country

10. Local Authorities (LA) to be first line to approve PR for EU citizens for the same price (£65). More complicated cases to be referred to the Home Office). LA will check HMRC or DWP databases and approx. 1.8m people should see their application processed this way

11. More complex cases passed on to the Home Office to a special dedicated team

12. The Home Office should not refuse PR based on lack of Comprehensive Sickness Insurance *

13. The Home Office to run campaigns to engage EEA nationals and support vulnerable groups though an advice service

14. Offering the above status will create an enormous amount of good-will leaving no choice but for the EU to grant UK citizens in Europe similar rights

 * the entitlement to the free NHS to be considered as fulfilling the CSI requirement for EU citizens

You can read British Future’s official statement at https://www.britishfuture.org/articles/eu-nationals-report/

 

Plan To Fast-Track Associate EU Citizenship Proposal

The BBC on 9 December 2016 reported statements by Guy Verhofstadt, the European Parliament’s chief Brexit negotiator , that the Associate EU citizenship proposal would be fast-tracked and would be on the table as part of the Brexit negotiations between the EU and the UK (see BBC coverage).  However, some experts in Brussels have since  argued that the proposal is unlikely to progress as citizenship rights for citizens of a non-EU country would require Treaty change (see The Guardian coverage).

Associate EU Citizenship Proposal

Charles Goerens, MEP for the Alliance of Liberals and Democrats Group in the European Parliament,  has tabled an amendment to a Parliament report on the future institutional set up of the European Union, calling for the establishment of a European associate citizenship for those who feel and wish to be part of the European project, but are nationals of a former member state.  See Charles Goerens’ blog  here and his twitter feed with updates. 

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