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

-- 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.

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