Brexit case Miller/Santos: third day digest

Here are some of what seem to this writer crucial exchanges during the third day of the Brexit High Court case R (Miller and Santos) v Secretary of State. They concentrate on exchanges between the judges in the case and the lawyers. The original runs to 160 pages. The digested version of the first day is here. And the second day is here. The links to the transcripts appear at the bottom along with quoted cases and comment. (Note, some page numbers are included; they come at the bottom of the relevant pages ie refer to the text above).

The third day of this case (Oct 18)

James Eadie QC on how the Article 50 notification process would work. He notes “there will on any view be considerable further Parliamentary involvement in the future” to which the Lord Chief Justice replied “Mm-hm”.

MR EADIE: [I]f there was an Article 50(2) withdrawal agreement, that would be a treaty between the United Kingdom and the EU.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: As such, it is likely that it will come within the procedures in CRAG [Constitutional Reform and Governance Act 2010]. … It will be a treaty, but I say likely to fall within the procedures within CRAG, because CRAG, like the Ponsonby memorandum which it sought to embody … CRAG only applies to treaties which are subject to a formal process of ratification. See, amongst other things, section 25(3) and (4), and indeed the process of ratification which is the cornerstone of the Act in section 20. Now, almost all treaties are, but not all treaties are, subject to ratification. In other words you can on the international plane enter into an agreement without ratification necessarily following … those agreements do happen but they are pretty rare, and it is considered very likely that this agreement, if entered into, in other words the 50(2) agreement, would be a treaty requiring ratification. Of course one can’t exclude the theoretical possibility that it wouldn’t be.

Eadie describes the “double negative” procedure whereby the Treaty is placed in both Houses of Parliament for ratification or rejection. He agrees with the LCJ that “in the contingency that there was an agreement, Parliament could say no”.

MR EADIE: It is ultimately dependent upon the agreement of the parties to the treaty, whether they want it to be

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subject to ratification or not. But as I say, the view within government is that it is very likely that this treaty will be subject to ratification process in the usual way. Most of them are. It is a pretty rare event for the things to take effect immediately upon accession, as it were. Continue reading

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The Brexit court case (Miller/Santos): Day two digested

Here is the second part of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State. They try to avoid simply setting out presentations and disquisition of cases and look more at questions put by the judges in the case and the answers. Nevertheless they (will) give a fairly full idea of what was going on, particularly for those not wishing to read the 580-odd pages of the transcript. The links to the transcripts appear at the bottom along with quoted cases and comment. The digested version of the first day is here. And the third day is here.

Note: This is a work in progress mainly containing Eadie’s second day arguments on behalf of the Government at present – but more will be added.

The second day of the case (Oct 17)

Ms MOUNTFIELD: Since the passage of the European Communities Act, no EU treaty has ever been ratified without prior Parliamentary authority, and I submit that that is necessary because of the two otherwise inconsistent constitutional principles. The Crown can make treaties, but not if, or to the extent, that they confer rights or impose liabilities in domestic law, or withdraw rights and liabilities in domestic law.  I say that the consequence of that is that while the European Communities Act is in force, the prerogative power, either to make further treaties or to amend treaties, or to withdraw from treaties is impliedly abrogated, because otherwise it would be the Crown and not Parliament which would be conferring or withdrawing rights.If there is any doubt about that, section 2 of the European Union Act expressly provides that the Crown may not ratify a treaty which amends or replaces the existing treaties without Parliamentary authority, through various procedures.

I submit that since the purpose of that provision is to prevent the Crown from altering the foundations of EU  law as it applies within the UK without Parliamentarysanction, and we have quoted William Hague introducing the 2011 Act saying that, by necessary implication, that restriction extends to any act of the Crown which would withdraw from or revoke those treaties without  Parliamentary sanction, and thereby remove directly enforceable rights.

I don’t have more time to develop that argument in detail, but I would invite the court to consider  carefully the submissions on this in our skeleton argument at paragraphs 29 to 41 and 47 to 50. I then turn to my fifth proposition, which is thatnotification of withdrawal from the EU, using the prerogative, would be unlawful because it would be  ultra vires the Bill of Rights. … The relevant provision is very well known, the late dispensing power.

“The pretended power of dispensing with laws or the execution of laws by word    regal authority as it had been assumed and exercised of late is illegal.”

… I invite you to find that the relevant definitions of “dispense” in this context are to forego or to disregard; and to execute a law or purpose is to put it into effect.  So to forego or to disregard the putting into effect of a law or the purpose behind the law. So for this limb of my submissions, I have to submit that in practical terms, the putting into effect of the purpose of the European Communities Act, that purpose being to enlarge the EU by having the UK as a member of it, would be foregone or disregarded if a minister of the Crown were to act so as to require the UK to leave the EU.  So too would the purpose and putting into effect of many other laws, like the name    European Parliamentary Elections Act 2002.

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I want to take your Lordships, I am conscious of the   time, to three authorities which support this   submission. The first is the case of  Proclamations …  of course it pre-dates the Bill of Rights. But I want to show you it, because it is an example of the pretended power, or gives an example of the pretended power of regal authority, which Lord Coke gave as an example of a legal action, to which in my submission the Bill of Rights was referring when it said this these dispensing powers had been used, assumed and exercised, illegally before it was brought in to force. Lord Coke said: “We do find diverse precedents of proclamations which are utterly against law and reason and for that void.” [Coke continued:]

“An Act was made by which foreigners were licensed to merchandise within London. Henry IV, by proclamation, prohibited the execution of it, and that it should be in suspense until the next Parliament, which was against the law.”

So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time.

MR EADIE [for the Government]: The prerogative, it has often been said, is the residue of powers left in the hands of the Crown. We submit that words need to be added to the end of that description of the prerogative and the correct and true principle is that the prerogative is the residue of powers left in the hands of the Crown by Parliament. That is true as a general proposition. It is all the more true in circumstances in which Parliament has decided to impose some, but specific, controls in the relevant area, where the prerogative operates.

LORD CHIEF JUSTICE: But the basic principle is, it is reflected in the cases dealing with our adherence to the European Convention before the Human Rights Act; that if the Crown enters into a treaty, no rights can be derived by citizens under that treaty as a matter of domestic law and so it can’t affect domestic law, so you don’t quarrel with that principle.

MR EADIE: I don’t, I don’t quarrel with that basic principle.

THE LORD CHIEF JUSTICE: Okay.

It is accepted by everyone that if the Crown enters into a treaty it has no effect on the rights of the citizen until it is given effect to by domestic law. But what is clear you are saying, I think, is that the opposite isn’t true; that you can withdraw from a treaty defeat the rights that Parliament has conferred.

Continue reading

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The Brexit court case (Miller/Santos): Day one digested

Here are some of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State. They try to avoid simply setting out presentations and disquisition of cases and look more at questions put by the judges in the case and the answers. Nevertheless they (will) give a fairly full idea of what was going on, particularly for those not wishing to read the 580-odd pages of the transcript. The links to the transcripts appear at the bottom along with quoted cases and comment.

Note: This is a work in progress mainly containing Pannick’s first day day arguments on behalf of Miller in favour of a vote in Parliament on issuuing the Article 50 Brexit notification.

Firstly, two extracts from the first day of this case (Oct 13)

Exchange between Lord Justice Sales and Lord Pannick QC (for Miller) at page 54/55 of the draft transcript:

SALES LJ: Am I right in thinking that you  say that the effect of the argument for the government  would be that there wouldn’t need to be a repeal of the  1972 Act or section 2 of it, it is just that the content  of the obligation in section 2, EU rights, would fall  away, because they would cease to be EU rights?
16   LORD PANNICK: Precisely. Your Lordship is very aware and  I am not going to enter into any political debate, but  your Lordship knows that the government have announced  that there is going to be a great repeal bill which is  to be produced some time in the next session. I say  that the consequence of the defendant giving  notification will be that at a point in the future, it  is inevitably the case that the United Kingdom leaves  the EU and the consequence of that, as a matter of law,  is that all of the rights enjoyed under section 2(1) and

page 55
section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say  nothing about that. It will not affect those questions.  Those rights will fall away as a consequence of the  United Kingdom leaving the EU. Because when we leave,  there are no treaty obligations. That is the whole  point of leaving. And indeed that is the government’s  intention. This is not a happenstance, this is the  whole point of notification. Notification is intended  to remove the current substance of section 2(1) and  3(1). Continue reading

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The celebrity threesome and a judicial foursome

Has the UK Supreme Court attempted to put the frighteners on the British press in the “celebrity threesome” sex case of PJS v News Group? The matter has not yet come to full trial, yet Lord Mance, who gave the lead judgment from the interim injunction hearing, has already accepted there is no public interest in the issue of who is PJS, the celebrity in the threesome.

Does this mean the Sun on Sunday, seeking to overturn an injunction against naming the alleged adulterer and his spouse, known as YMA, has been declared the loser before the case is heard?

Lord Mance has also suggested the Supreme Court might be amenable to establishing that damages for publishing such stories could be exemplary (a notion rejected in Mosley v News Group at a lower court level); or perhaps there could be innovative use of an “account of profits” – in effect handing over profit gained from use of private material. In Douglas v Hello regarding Hello’s unauthorised coverage of the Douglas/Zeta-Jones wedding, Lord Phillips said: “Such an approach may also serve to discourage any wrongful publication, at least where it is motivated by money.”

Arguably the court has also favoured the extension of the right to privacy beyond the limits set in the Human Rights Act and (at least until recent years) by Common Law – to the way a story is told rather than the mere confidential facts – thus embedding the so-called judge-made privacy law.

Lord Mance, in introducing his judgment to the press, said this (according to the Guardian):

“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.” 

 This is subtly different from the rather more circumspect phraseology of Mance’s actual judgment, on behalf of himself and three other justices:

There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it [lifting the injunction] would involve significant additional intrusion into the privacy of the appellant, his partner and their children.” (para 44; emphasis added)

The judgment is, quite correctly, hedged around with qualifications whereas the press statement is boldly assertive – and arguably misleading, suggesting that the highest court in the land has established a legal principle and found the Sun on Sunday outside it in seeking to run the PJS story. Why the difference? Continue reading

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Young boy’s ‘sexual experimentation’ that led to lifetime criminal record

The case of a 12-year-old boy’s “sexual experimentation” with male friends in a garden shed more than 10 years ago has joined a series of legal challenges to UK policy on maintenance and disclosure of records of “spent” convictions and police cautions. 

The boy, G, and his mother had been told  in 2006 the record of his “reprimand” (a minor caution for juveniles; see S.65 Crime and Disorder Act 1998) for two counts of sexual assault would be wiped out when he was 18. But when in 2011 he applied for a job in an employment agency at the library of a local college he was shocked to find that the police reprimand appeared on records at the Criminal Records Bureau. He withdrew his application to avoid the reprimand being revealed.

In 2006 Association of Chief Police Officers (ACPO) policy on keeping records had changed from weeding them out after five years if there was no subsequent offending to retention for 10 years. After 2009 it became police policy to retain caution and conviction information until the subject reaches 100 years of age.

G and his mother had been misinformed about the five year period and now he had been caught by the “aged 100 rule”. An appeal by G to the Chief Constable of Surrey for the record to be expunged was rejected.  Continue reading

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Arnold v Britton: Lord Neuberger abolishes common sense

Lord Neuberger, President of the UK Supreme Court, has issued one of his presidential proclamations – which is what he does when he wishes to change the law from his lofty but unaccountable position. Nominally the case he was considering, Arnold v Britton & Others, was a simple enough matter regarding service charges for a set of chalets on the Gower peninsula: clause 3(2) of the lease said the price for work such as mowing grass, maintaining roads through the site and sewers &c was to be £90 in 1974 rising by 10% a year; how should this be interpreted nearly 40 years on when the annual figure was more than £3,000 per chalet and rising? (Inflation would produced a figure of less than £800 by 2012.)

If the charge were truly to rise by 10% a year the lessor would be making a very substantial surplus over the term of the lease thanks to compounding (Year 2: £90 + £9 = £99; year 3: £99 + £9.90 = £108.90 and so on annually.) As Davis LJ in the Court of Appeal noted:

 “The figures before us are illustrative of the consequences. For a lease on a one year compounded uplift, the annual service charge payable was, for the year end 2012, some £3,060. At the same compounded annual rate of increase, the projected annual sum payable for service charges in the last year of the term stands to be some £1,025,004: this for modest holiday chalets, the use of which is restricted to half of each year.”

That’s a million pounds per chalet. There were 25 involved in the litigation but 91 in total, some with a less onerous system of payment for services. The outcomes would vary depending on when the leases were issued. Nevertheless, if the clause in the lease were allowed to stand, the lessors would have pulled in hundreds of millions in pure profit over the 99 years of the lease. This on a term of the lease which, it is axiomatic, should not be profit-making since it is merely for the lessor to recover expenditure on ongoing maintenance of the common facilities (see Lease – though holiday chalet leases aren’t covered by legislation for homes).  Continue reading

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Kiarie and Byndloss: foreign criminals lose Section 94B Immigration Act appeal

UK Court of Appeal judges have rejected cases brought by two men against the use of a tough new law brought in to curb the rights of foreigners convicted of criminal offences to challenge deportation orders — the so called “deport first, appeal later” system.

The judgment is a strong endorsement of the new system in an early legal test of the new Section 94B of  the Nationality, Immigration and Asylum Act. However, the judges have criticised “misleading” guidance on using the new provision issued by the Home Secretary, Theresa May.

Kevin Kinyanjui Kiarie, born in Kenya, and Courtney Aloysius Byndloss, a Jamaican, have hit the headlines as they challenged the provision that requires some of those facing deportation to leave Britain and make their appeals against deportation from their country of origin.

According to Section 94B of the Nationality, Immigration and Asylum Act 2002 (inserted in 2014 by the new Immigration Act — see provision below) this procedure should occur if the continued presence of the individual in Britain is considered “not conducive to the public good”.

Under the new provision the Secretary of State would certify this to be the case, and that the individuals’ ECHR Article 6 rights (to a fair hearing at court) would not be harmed by pursuing an appeal against deportation “out of country”. Certification can only occur if the the individual would not “face a real risk of serious irreversible harm if removed to the country or territory to which [the person] is proposed to be removed”.

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