Transcripts (perhaps draft) of the Article 50 ‘Brexit’ Appeal hearings at the Supreme Court

  • That is very kind. I hope to be finished in time.

    A great deal has been said and I do not propose to repeat it. Except to say I wish I had said all those wonderful things that you have heard from Lord Pannick, Mr Chambers and those who have gone before me this morning.

    But I adopt them of course, gratefully. A reasonable amount of what I had intended to say and which is in a speaking note which I hope has found its way to the bench --

  • Thank you very much, we have it, yes.

  • -- has been covered by Mr Gordon QC this morning, so that will perhaps helpfully shorten things even further.

    My Lords, my Lady, the first thing to say at the outset, I think is this. I will make a few introductory comments and then deal with three points. But the first thing I think one has to keep hold of is that hard cases make bad law. This case is not hard. Some people are trying to make it very, very hard. The reason why they are trying to make it very hard and putting their counsel in the position of contortions, where they are saying one thing one minute and another thing the next, is because nobody ever thought that the 2015 Act was ever intended to confer any prerogative power at all.

    The reason for that is, or one reason for that may be, when I say nobody, I mean the Government, two important actors, the Government and the legislature, and the one reason for that may be this: it is a political point made by those who voted leave. It is that nobody ever thought there was going to be a leave vote. That is why -- the idea even that there was going to be any need to even consider the prerogative. That is why the statute is simply drafted as it is in the limited way. But this will be something that I may touch on briefly in due course.

    At the outset, a few opening points which are reflective of what Mr Gordon said, but I just wish to highlight them in this way. Firstly, if the rule of law is to mean anything, even sovereigns must be constrained by it. The prerogative is no more than a creature of the common law. It is not that you cannot use the prerogative to dispense with laws; there is simply no prerogative to dispense with laws; it is not a question of its use or abuse, it just doesn't exist.

    That was the position before the 1972 Act. The 1972 Act did not change that position. I am not going to go into the 1972 Act or the legislation. Others have dealt with that. No question of a clamp arises.

    The non-dispensing principle that Mr Gordon talks about remains and no question of a clamp at all arises.

    Those are the opening comments. The three areas that I do want to deal with are the areas which affect -- two of them which affect those clients who I particularly represent and then the third point will be to say something about the flexible interpretation point, which gets back to the 2015 Act point.

    So starting with the two areas that affect my particular clients and it is in the opening note, in the speaking note, my Lords, my Lady, the submissions that have been made, which amount to basically what Mr Gordon has reiterated this morning, are said basically to force a technical position, that you are just asking for an act of Parliament when really something else will do, some other form of parliamentary involvement will do.

    We say our position is anything but abstract or technical. It is very, very real. Not only does the use of the prerogative, claimed use of the prerogative, now affect whole swathes of laws; they affect the most fundamental rights which affect vulnerable classes of persons that are set out in our printed case, facts as to precisely how my clients will be affected. I am not going to have time to go over that, but it is set out in the case. Very real examples of what the law changes will mean for them.

    Now, that being the position, we say that the parties who we represent, the AB parties, they are representative of two classes of persons -- this is paragraph 6 of the speaking note -- EU nationals living in this country and those who derive rights of residence from them, principally their family members; and secondly, children, whose continued presence in this country depends on the exercise of them or their carers and family members, of rights derived from EU law.

    And I have in mind British children who as EU citizens need carers who are non-British or non-EU even, who therefore, as a result of EU law, need their carers with them, who are then given what are called Zambrano rights, derivative rights of residence.

    These classes of persons, and the first class, EEA and their family members, is of course a very large class, are very, very significantly affected by the position.

    Now, for the reasons that are set out in our written case, we say that the effect of what the Government now wants to do, is now forced to do, not having thought about it beforehand, is to say that they will use the prerogative to give the Article 50(2) notice; having themselves made an Article 50(1) decision; they don't say the 2015 referendum decision was the decision, they say they themselves, the Government, will make and have made, the decision; and that they will give the Article 50(2) notice under the royal prerogative. And they say that they will give it without there being any prior safeguarding of the rights that would otherwise fall on the day of withdrawal.

    We say that is simply a complete breach of the non-dispensing principle, whatever label one wants -- Mr Gordon referred to this morning.

    So what does that mean for the class of people that I represent, the EEA nationals, when you don't put in place a protective scheme for them as to what their position will be on the day of withdrawal. What it means is, and I put it like this, paragraph 11: be ready to pack your bags and go on that day. It is that stark, because we are not going to give you any guarantees, in fact we are going to use you as a bargaining chip.

    Not only are we not going to put any rights in place in the domestic legislation which protect you in some sense, we would like you to stay but we are giving you no guarantees whatsoever; that is the current position. We say that on the current law, and I am only dealing with law, not -- the current law, not as to what may happen, that is simply not possible, or lawful.

    Of course things may change in the future, paragraph 12, of course protections may be given. This was Mr Eadie's response in the court below, and he has not dealt with it in his written case, and I assume that this will remain his response in his reply. His response was that: Mr Gill is putting it in too exaggerated a way, of course we will find ways of protecting people in due course.

    Due course is not good enough for me or for the children that I represent. They need to know what is their position now. Children in particular are entitled to know because of the duties to which we have signed up to under the UN convention, rights of the child, which therefore impose upon us obligations under Article 4 of that convention for progressive implementation of the convention in national law. Children are entitled to know what is going to be their position. Their parents are entitled to know what long-term arrangements are we going to make for them.

    Bear in mind, this may not be two years on the law, bear in mind, this is a point made in the speaking note, on the Secretary of State's case, if this is all about prerogative power, what they could do is they could negotiate with the other member states now, behind the scenes, I have no problem with that; they can do that on an international level anyway. They could have some sort of agreement, withdrawal agreement lined up in principle, draft agreement.

    They could then, on 1 January, give a notice, having made a decision for 50(1) purposes, and under 50(2), give the decision on 1 January; on 2 January they could sign their withdrawal agreement.

    On the law as it stands, and on their case, that could be the effect. Where does that leave the rights of the EEA nationals or their families, people who have been here and the children in particular? It drives a coach and horses through all those rights.

    It may take two years, it may take longer than two years. That in a sense is even more cruel because it actually prolongs the uncertainty.

    Not only this, paragraph 15, we say it is not just about taking away rights; it is about exposing the class whom I represent to criminal liability and summary removal. Again, there was no dispute about this in the court below. I have been saying this, we have been saying this, from a very early point and the other side have never disputed this. Their position is: we will find some way of sorting this out. I am not going to have time to take you through the legislation on this. It is set out in our printed case at paragraphs 42 to 55.

  • The relevant section is section 7 of the Immigration Act 1988 which in effect says that, if I just read it out very fast, on MS 12533:

    "A person shall not under ... Immigration Act ... require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable right or any provision made under section 2(2) of the European Communities Act ..."

    The immigration -- EEA regulations 2006 are that instrument, and therefore the rights flow, not from the Immigration Act 1971; they flow from section 7 of the ECA 1972, section 7 of the Immigration Act 1988, and the EEA Regulations 2006, outside of the remit of prerogative power.

  • Mr Gill, I should just point out that you are well over halfway through your submissions and you said you had three points and this is the first.

  • My Lord, I think the other two, I hope will be a bit shorter.

  • The second one certainly will be.

  • The position then is that for the reasons that are set out on 12533 and 12534, it is, what will happen is that on the day of withdrawal, and you will just have to go through the legislation, I am afraid, but believe me, I am right, that on the day of withdrawal, my clients are here without leave, they are committing a criminal offence, unless Mr Eadie stands up and says: no, I am telling you they are not going to be committing a criminal offence. And he has never said that so far. I would be very happy to hear him say that but he has not said that.

    If that is the position, then Case of Proclamations, tab 9, middle of page 266, the quote which is at the bottom in our footnote 40:

    "... King cannot change any part of the common law nor create any offence ... proclamation which was not an offence before without Parliament ..."

    And the Jones case, my Lords, the references to this --

  • They are helpfully in paragraph 17 of your speaking note, thank you.

  • Yes, and it is MS 2852, and it talks about creeping situation which brings about a criminal offence, can't do it, it says without Parliament, it is that clear.

    Now, that, therefore, for those reasons, we say means that this is about -- even if Lord Pannick were to fail on a broader argument, this argument on its own would stand.

  • As to then the children's point.

  • This is your second point.

  • This is the second point. I am going to come back to the flexible interpretation point.

    My Lords, the children point is really set out at paragraphs 20, 21 and 22 of the speaking note and --

  • This is really a sort of extreme, as it were, category of the first, is it really?

  • It is, it is, absolutely it is.

  • But there are a great many family lawyers extremely concerned about what this is going to mean in relations to Brussels 2(a) and all sorts of other regulations to do with the enforcement of orders across Europe, and what protections are going to be put in place.

    Of course Mr Eadie did submit in the court below, we will find some other way, there will be other mechanisms of human rights provisions of one sort or another, possibly Hague convention in relation to this. But they are not the same, and this is what the divisional court said, those measures are not the same, and there are many ways in which I can explain why they are not --

  • It is a bit like the Fire Brigades point, the fact that the Government says it is going to introduce legislation, you say is nothing to the point.

  • But this really explains it very graphically. As to the flexible construction point, if I can just have three or four minutes in relation to that.

  • You have it, of course, yes.

  • My Lords, this, we say, is a red herring in this case. This case is not about flexible constitution at all. It has nothing to do with it. This is about a very clear constitutional point which is the bedrock of our constitution. We do not need to struggle to make the constitution flexible in order to give effect and meaning to that fundamental principle that Mr Gordon and Ms Mountfield and others have talked about.

    The flexible constitution point, and the only authority cited in support of this is the Robinson point, was being used by Lord Bingham in a certain way only and we have set this out, if I just skip a bit, on page 11 of the speaking note, at letter J:

    "The appellant's submission is built on the idea of a flexible constitution, which is derived from Lord Bingham's very limited use of that concept in Robinson. However, Lord Bingham was only able to refer to the need to adopt flexibility because of the flexibility which he derived from other statutory sections. Robinson is therefore a traditional exercise in construction of a statute, guided by the need to make the statute work in a flexible constitution."

    But the appellant seems to be asking the court to go way beyond this, and to drag out of the 2015 Act, when he accepts the language simply is not there at all, but to drag out of the 2015 Act, in combination with some other things which are ministerial statements, some indication that Parliament must have intended to cede its control over this. This is set out in paragraph 25. 25 and 26. But -- okay.

    At 25 it says for the purposes -- the appellant's submission really is this. For the purposes of interpreting legislation in order to decide whether the executive has been given a prerogative power, such that this exercise will nullify a large body of laws given by Parliament of our fundamental human rights and freedoms, including exposing people to criminal liability, he says the court is entitled to have regard to (1) what the 2015 Act does not say, as opposed to normal principles of construction of language; (2) to couple that with the appellant's asserted interpretation of a background context, and in particular with statements made by ministers that it would be their intention to act in accordance with the outcome of the referendum, despite other statements to the contrary. (c) to infer therefrom by using this notion of a flexible constitution, and that is all it is, that the Parliament must have intended to confer upon the executive the power to give the Article 50(2) notification, simply on the strength of a vote if it was to leave the EU.

    This is a novel and far-reaching proposition, indeed, it is outlandish and seeks to avoid the principle of legality; avoid the words of the 2015 Act; seeks to read in extra words which are simply not there; completely defeats the Hoffmann principle in Simms; and would require, if Mr Eadie is right, actually, and this is bottom of page 9, actually look at a lot of other things like evidence; what did people mean when they said what they did in such and such statement and so on? What did Parliament actually mean? It is just a complete nonsense when one gets into how you are actually about to deal with it.

    As to Parliament standing up for -- this is what I will finish on -- as to Parliament standing up for itself, why should Parliament have to say anything? Why should it have to react to what could be politically mischievous conduct -- usurping the executive? Why should Parliament and the judiciary not assume that the executive and the people of this country know the law? Why should it be assumed against Parliament, and against almost half of those who voted in the referendum, and perhaps all of those who did not, that Parliament understood and agreed to the proposition that by enacting 2015 Act in the terms that it did, it was in fact ceding the legal question, the legal decision? Why should that be assumed?

    My Lords, my Lady, the other points are simply there set out in the rest of that paragraph and we say in paragraph 27, whilst I accept Lord Reed's point that the notion of a flexible constitution can be useful, this case is about something far, far more fundamental than that. The court may be facing a certain amount of pressure, it is a 11-bench court; this is no time to turn a flexible constitution into a slippery one and let go of its bedrock fundamentals.

    My Lord, those are my submissions.

  • Thank you very much indeed, Mr Gill.

    Well, we have reached just after 1.00. We will resume again at 2.00 and we will be hearing from Mr Green then, I think. Thank you very much. Court is now adjourned.

  • (The Luncheon Adjournment)

  • Final shake of the kaleidoscope of the front bench. Mr Green.