Friendly Enemy: The members of Number 3, Equity Court often find themselves on opposite sides of a case, but are friendly enough to each other, usually
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Good morning from R (Miller) v Prime Minister, in the High Court of England and Wales (Divisional Court). Gina Miller represented by Lord Pannick QC. PM represented by Sir David Eadie QC. Judges are Lord Burnett CJ, Sir Terence Etherton MR, Dame Victoria Sharp President QBD.
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Lady Chakrabarti (intervener) is in court. Sir John Major (intervener) is not. All interveners are making written submissions only.
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Lord Pannick opens the proceedings with a bon mot about his junior counsel, Warren Fitt.
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Pannick begins with historical information about past prorogation lengths. Never longer than three weeks in past 40 years.
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Pannick: PM’s advice to HM is an unlawful abuse of power. It breaches the legal principle of parliamentary sovereignty. It removes ability of parliament to pass such legislation as it sees fit relating to leaving EU, when time is of the essence because of the 31 October deadline.
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Pannick cites document, already seen in the Scottish court, in which PM says he doesn’t see anything “shocking” in this prorogation. He says PM doesn’t understand constitutional role of parliament. The advice to HM was therefore an abuse of power.
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Pannick: this PM is proroguing parliament with no justification and by reference to improper considerations. This court has power and duty to ensure no abuse of power of PM in these respects. Court must have jurisdiction to consider these matters. PM doesn’t have unfettered power
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Etherton MR asks Pannick QC whether there can be other justifications for prorogation, apart from a Queen’s Speech. Pannick says there are but says each decision must be judged on its merits.
Pannick: decision to prorogue infected by rank bad reasons. Advice to HM manifest abuse of power.
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Pannick moves onto jurisdiction (key issue here). Prerogative powers have been justiciable since the GCHQ case [1985] AC 374. An Order in Council made by HM on advice from the Privy Council is equally justiciable, he argues.
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Pannick: the dissolution of parliament is a personal prerogative of the sovereign. That’s different from prorogation, on which the Queen must follow the advice of her ministers.
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Second correction: Pannick said the dissolution of parliament WAS a personal prerogative of the sovereign until the Fixed-term Parliaments Act 2011. Apologies.
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Pannick says more prerogative powers have been regarded as amenable to judicial review since the GCHQ case: the grant of pardons, mercy, refusal of passports, foreign relations/diplomatic representations — but the courts must “proceed with caution”.
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Lord Burnett asks Pannick whether he says all prerogatives are justiciable. Pannick says that if a PM decides to declare war on Ruritania, no court would review such a decision — unless there is a statute or some public policy statement that restricts the PM’s discretion.
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Pannick: the courts must exercise caution — sometimes extreme caution — but they can review all prerogative powers. But he accepts that personal prerogatives, eg appointment of ministers, are not covered. And there are areas where it’s inconceivable that courts will interfere.
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Pannick: there should not be a separate principle of non-justiciability. In any event, executive power cannot be unlimited and the courts will enforce constitutional rules in the same way as other laws.
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Pannick: court cannot say it has no jurisdiction if he has established the breach of a relevant legal principle.
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Pannick deals with PM’s objections. PM says this is a matter of high policy and politics and so the court has no jurisdiction. Pannick says it may well involve those but courts still have jurisdiction. His example is the first Miller case, which involved an issue of law as well.
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Pannick: PM says there are no standards by which the courts can assess the lawfulness of ministerial advice on prorogation. He replies that this is no different from any other public law case and that’s why he disagrees with Lord Doherty’s Court of Session judgment yesterday.
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Pannick: I don’t accept that accountability to parliament — another of the PM’s arguments — is an answer to my claim. He says he does not accept that the NI (EF etc) Act 2019 requires parliament to sit during the prorogation that has been announced.
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Pannick: PM needs to confront the breadth of powers for which he contends. If correct, why couldn’t he advise prorogation for a longer period? PM’s only response is to accept that this would be unconstitutional. PM denies that it would be unlawful. But Dicey has been superseded.
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Pannick concludes his submissions after two-and-a-half hours. Sir James Eadie QC for PM begins with non-justiciability.
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Eadie QC for PM: parliament specifically preserved the prorogation prerogative when it passed the Fixed-term Parliaments Act 2011, section 6 (and previously in 1707). This prerogative power has not been put on a statutory footing. It has merely been recognised by parliament.
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Eadie: the question for this court is whether a specific issue is justiciable, not whether a particular power is justiciable.
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Eadie: not all exercises of the prerogative are justiciable. It depends on the subject matter. Some are unsuitable for judicial intervention. Some are not justiciable. The test is not merely whether it’s the exercise of a power.
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Eadie: it’s true that the courts have reviewed more prerogatives than before. That’s because these impinged on people’s rights — as in first Miller case. But power is not subject to judicial review just because it’s power. It turns on the subject-matter. Some are non-justiciable.
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Eadie QC for PM is now arguing that the prorogation of parliament is inherently political and hence non-justiciable. He cites Wheeler v PM [2008] EWHC 1409 in which the court accepted that there were no judicial standards by which it could consider if there should be a referendum
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Eadie QC: the rationale for non-justiciability of prorogation is there are no judicial or manageable standards to test its lawfulness and it would not be constitutionally appropriate for the courts to die so. Court adjourns until 2pm.
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Hearing resumes: R (Miller) v Prime Minister, in the High Court of England and Wales (Divisional Court). Gina Miller represented by Lord Pannick QC. PM represented by Sir James Eadie QC. Judges are Lord Burnett CJ, Sir Terence Etherton MR, Dame Victoria Sharp President QBD.
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Eadie: decisions about prorogation are inherently political in nature. They involve managing the government’s legislative agenda; when it might be appropriate to interrupt existing business and carry over legislation; how to prepare for a new legislative agenda; etc.
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Eadie: parliament has specified circumstances in which it may sit while it stands prorogued: Acts passed in 1707; 1996; 2004; 2019. Lord Pannick claims parliament is “unable” to legislate while prorogued. How is a court to judge whether parliament would have wished to legislate?
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Eadie: how is a court to decide how long parliament should sit? What factors might justify a longer or shorter prorogation? Is it appropriate for a court to be setting these rules? We say not.
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Eadie moves on to “recent events”. There will be sittings in which parliament can legislate as it chooses. Section 3 of the NI (EF etc) Act 2019 indicates that parliament has made specific provision to sit, during prorogation, when it chooses to do so. Only parliament can judge.
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Eadie: the court is being asked to set additional standards. How can it properly do so?
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Eadie: claimants say that parliament was being deprived of the chance to legislate on a no-deal Brexit. As events have shown, parliament gas had the opportunity to do just that. Parliament can react as it sees fit, however unwelcome to the government.
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Eadie: this is the political maelstrom in which the court is being asked to get involved. It looks likely that the [anti-no-deal Brexit] bill will pass through parliament. This might be thought to render the whole proceedings rather pointless.
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Eadie: Pannick says proroguing can’t be exercised in a manner that impedes parliamentary sovereignty. But sovereignty provides no answer to the problem the courts face in deciding how long parliament should sit. Prorogation has been left by parliament to ministerial discretion.
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Eadie: none of the cases cited by Pannick came close to providing a specific policy that this court could adopt. The Unison case doesn’t say whether parliament should sit at a particular time.
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Eadie: at the heart of this case is the claimant’s concern that parliament would be disabled from doing the very thing it has been doing over the past few days. Parliament has passed a plethora of legislation on Brexit. It was always going to sit this week.
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Miller: Lord Burnett says court is assuming that either or both parties would seek to take the case direct to
@UKSupremeCourt
Court has adjourned until 1000 tomorrow. Decision may (I suspect will) be given then, with reasons to follow. Losing side likely to appeal to @UKSupremeCourt which is expecting to hear the appeal on 17 September, along with appeal from Court of Session.
Stanley Brodie QC says the UK left the EU on the 29th March 2019
Stanley Brodie QC has written an article where he details that the UK, has legally left the EU as of the 29th of March 2019 and he explains that not only is that clear in law, but also that the way the law was presented to Parliament was illegally modified.
Whichever way one looks at it, the Agreement was either unlawful or made for an unlawful purpose or ultra vires .That means that the UK left the EU on the 29th March 2019 by default as there was no valid or lawful impediment to prevent it.
The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
The proviso could not be used to reopen, or continue, never ending debate. Nor can it be used as a general power to extend time.
The Article 50 period is set at 2 years unless, as provided for in Article 50 “the European Council, in agreement with the Member State concerned, unanimously decides to extend [it]”.
So the version put out by the civil servants was false. The differences in meaning between the two versions were considerable.
So the civil servants responsible for briefing parliament to enable an informed debate to take place, themselves were misleading it. The alteration of the text of Article 50, and of the proviso to paragraph 3, must have been deliberate.
This is a truly alarming state of affairs; it should be exposed sooner rather than later.
CONCLUSIONS
Stating the outcome shortly, it would seem to be as follows:
(i) The application by the Prime Minister for an extension of time until June 30th under the proviso to Article 50, made on or about the 14th March 2019, was legally valid, but was rejected by the EU.
(ii) This was followed by the Agreement proposed by the EU. It did not comply with the terms of the proviso; nor was Article 50 referred to or relied on by the EU. It was not effective to stop the Article 50 process running up to and including the 29th March at 11 p.m. Whichever way one looks at it, the Agreement was either unlawful or made for an unlawful purpose or ultra vires .That means that the UK left the EU on the 29th March 2019 by default as there was no valid or lawful impediment to prevent it.
COMMENT
This should come as no surprise to anyone who has taken an objective view of the entire EU experiment. The British public were led in the EEC with lies, by Edward Heath and Margaret Thatcher, because they knew that the people would not support the real agenda behind joining.
We were lied to again and again, whilst the political classes pushed ahead with their agenda for ever closer union, in total contempt of the people.
Read the full article written by Stanley Brodie QC
https://threadreaderapp.com/thread/1169535078646595584.html?refreshed=1567695448
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