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). A report on the Supreme Court case is here: What if Eadie was right?

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.

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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 for those not wishing to read the 580-odd pages of the transcript. It mainly contains Eadie’s second day arguments on behalf of the Government. They look mostly at questions put by the judges in the case and the answers. 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. A report/analysis of the Supreme Court case is here: What if Eadie was right?

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.

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. mainly to do with Lord Pannick’s first day arguments for the claimants. The links to the transcripts appear at the bottom along with quoted cases and comment. A report/analysis of the Supreme Court case is here: What if Eadie was right?

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).

Human Rights Act: Are these cases trivial?

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the new Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to “Limit the use of Human Rights laws to the most serious cases. They will no longer apply in trivial cases”) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.

Neuberger, Charles’s black spider memos – and the coming constitutional crisis

Judges in Britain are not supposed to strike down primary legislation that has passed through a sovereign Parliament. Yet that, on the face of it, is what seems to have happened in the UK Supreme Court’s judgment on Prince Charles’s “black spider memos”. And it is deeply paradoxical that it is Lord Neuberger, President of the Supreme Court, who has committed this apparently unconstitutional act, striking at a core “democratic” principle – that Members of Parliament (albeit a chunk of them unelected) pass laws, not judges.

For Neuberger has in the past expressed fears about the UK Supreme Court becoming a “constitutional court” with a dangerous potential for defying Parliament. In a 2009 BBC interview when he was Master of the Rolls (having refused to continue his role as a House of Lords judge into the new Supreme Court) he talked of the danger of “mucking around” with the British Constitution saying there was a risk  “of judges arrogating to themselves greater powers than they have at the moment”.  

‘Work for your benefits’ scheme and retrospective legislation

The UK Court of Appeal judges are to consider a claim that legislation passed in 2013 after a legal challenge to unemployment benefit rules is unlawful. Two judges have ruled that the retrospective nature of the legislation regarding the Work Programme’s “Work for your benefits” scheme falls foul of standard judicial interpretation under English law and of the European Convention on Human Rights.

There are thousands of claimants who had challenged the rules before the retrospective change. The judges in the Administrative Appeals Chamber of the Upper Tribunal have allowed the Department of Work and Pensions to appeal against their judgment as a test case.

The Timeline
The litigation arises from the case of Caitlin Reilly and Jamieson Wilson, sanctioned by removal of jobseeker’s allowance for failing to take part in the Work Programme assigned to them. Miss Reilly, a University of Birmingham geology graduate, had argued that making her work unpaid at a Poundland store for two weeks or risk losing her benefits was a breach of human rights. She had to give up arguably more relevant voluntary work at a museum to do the Poundland job. She attended her work programme job but challenged the legality of the requirement on her.

While the Court of Appeal in February 2013 (EWCA 2013 Civ 66) rejected a claim by Ms Reilly that the workfare-style programme was illegal forced labour under Article 4 of the ECHR, it found that the Secretary of State, Iain Duncan Smith, acted beyond his powers by failing to provide important detail about the Back to Work Schemes such as a description of the scheme. The judgment meant those people who had been similarly sanctioned for non-compliance with the scheme could have been entitled to claim back their benefit for those periods. However, legislation was rushed through Parliament to deny them the money.

 

The 2009 changes that brought in the workfare scheme in section 1 of the Welfare Reform Act 2009 (as a new Section 17A of the Jobseeker’s Act 1995) allowed the Secretary of State to make regulations requiring claimants to do work “designed to assist them to obtain employment”. Subsection 2 says: 

“Regulations under this section may, in particular, require participants to undertake work, or work-related activity, during any prescribed period with a view to improving their prospects of obtaining employment.”

Regulations were then passed in a 2011 statutory instrument (2011 No. 917) that could require jobseekers to “to participate in support provided by the Employment, Skills and Enterprise Scheme”. It is these regulations that in February 2013 the Court of Appeal in Reilly quashed, finding them to be ultra vires – beyond the powers of the provision in the parent Act (Section 17A of the amended Jobseeker’s Act). The Court said Ms Reilly and Mr Wilson had not been provided with “adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required”.

The failings were fixed prospectively by a further statutory instrument on the day the judgment was issued (2013 No. 276 – made at 2.19pm, laid before Parliament at 6.15pm and in force from 6.45pm). The Government then sought to stymie earlier claims by rushing through the retrospective provisions of the March 2013 Jobseekers (Back to Work Schemes) Act. When the Reilly case came to the Supreme Court  in July 2013, Lords Neuberger and Toulson said the 2013 Act was “plainly intended to ‘undo’ the decision of the Court of Appeal, in that … it retrospectively validates (i) the 2011 Regulations, (ii) the programmes listed in regulation 3(2) of the 2013 Regulations, (iii) notices issued under regulation 4 of the 2011 Regulations, and (iv) the benefit sanctions imposed under those Regulations in relation to the schemes”.

Since, by this time, the retrospectivity of the 2013 Act was under challenge in the Administrative Court (a claim was issued in June), the Supreme Court gave its judgment (October 2013 – in part against the Secretary of State including on the ultra vires point: failure to provide a “prescribed description” of any scheme) even though the issue had been “fixed” by the Act.

– but the court nevertheless found against the Secretary of State, leaving open the possibility of many further cases from before the February 2013 amendments.

The Administrative Court hearing
The Upper Tribunal in DB v Secretary of State for Work and Pensions (plus SSWP v TJ and SSWP v TG) in February 2013 heard a different set of cases – appeals from November and December 2012 judgments by the First Tier Tribunal. The judges approach the 2013 Act firstly as a matter of judicial construction ie “the ascertainment of Parliament’s intention in passing the Act, having regard to its language, its context (including the mischief which the Act was seeking to address) and such background materials as are admissible”.

There is already legislation to ensure claimants who have not appealed against a benefits decision do not benefit when the law is interpreted in court in a way that would favour them (S.27 of the Social Security Act 1998). The implication is that those who had appealed before a favourable judgment (in what would amount to a test case) should be able to successfully pursue their action. The Upper Tribunal judges had to decide whether there was anything about the words in the 2013 Act that showed Parliament’s intention was to “affect the rights of those claimants who had already appealed”. Although the words “for all purposes” appear in the 2013 Act, the majority of the judges (2-1) decided this was not enough to show an intention to exclude people who had already challenged their sanctioning before 2013 on the successful grounds in Reilly. The judges cited the explanatory notes to the Act which considered whether it was compliant with Article 6 on non-retrospectivity. They said: 

“45. If no legal claim has been brought on the grounds that the [2011] Regulations are ultra vires and/or that the notice issued under them is non-compliant prior to the enactment of the proposed legislation, the Government considers that Article 6 is not engaged at all since the claim to entitlement to benefit, and any dispute regarding a benefit decision thereon which would require access to the courts, remains hypothetical.” 

This implies that if a legal claim has been instituted before the favourable judgments it should proceed.  The judges said: “We do not see how that section of the Explanatory Notes could properly have been written as it was had the Government intended that those who had already appealed against sanctions should be caught by the Bill.” In other words “we are quite satisfied that there was no positive intention to include them”. The judges conclude: “Given the disposition not to read legislation to be more retrospective than clearly intended, we are satisfied that, notwithstanding the literal meaning of the words “for all purposes” in section 1(1), the 2013 Act should be read so as not to affect those who had already appealed against sanctions.” 

Article 6 of the European Convention on Human Rights
Article 6 requires “a fair and public hearing within a reasonable time by an independent and impartial tribunal”. (The Article 6 “unfairness” complained of may be interpreted as that the Government intervened in a legal process by passing the 2013 legislation – purporting to deny Reilly and others a “win” that the Supreme Court was preparing to give them.)

The Human Rights Act 1998 Section 3 requires judges to interpret legislation in compatibility with the ECHR. This, the judges asserted, means not merely where there is ambiguity but on the basis that the Secretary of State intended compatibility (as he is required to declare). Putative wording may therefore be added by judges to ensure conformity.  

The judges argued: “The effect [compatibility with the ECHR] can be achieved, for example, by reading in the words at the start of section 1(1) of the 2013 Act “Save where an appeal had already been made or had already been decided under section 12 of the Social Security Act 1998 before this Act came into force.” The Government argued this would actually run counter to the purpose of the Act but the judges said: “the mischief to which the Act was addressed was persons who had not already appealed adverse decisions and who would otherwise benefit from Reilly and Wilson because of section 27 of the SSA 1998 having no application’. The Act, on the construction set out above, was not directed against those who had already appealed against sanctions.

Materials

• Supreme Court judgment October 2013 R (Reilly and another) v Secretary of State for Work and Pensions UKSC 2013
• See also Reilly No 2 and Hewstone v Secretary of State for Work and Pensions on the Article 6 point and incompatibility with Article 1 Protocol 1 of the ECHR – right to respect for property. The claimants argued that “it is contrary to the rule of law, protected by Art. 6, for a State to legislate in the course of ongoing legal proceedings to decide the issues before the court, when it does so to its own advantage, as a party to the dispute. Such an interference with Art. 6 rights can only be justified by ‘compelling grounds in the public interest’. They submit that no such compelling grounds exist in this case.”
• Zielinski v France ECHR: “The Court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of a fair trial contained in Article 6 preclude any interference by the legislature–other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute”.
• Government Statement on SI 2011/917)
• There is an interesting piece by Carol Harlow on the UK Constitutional law blog on the 2013 Act retrospectivity issue here.

 

 

The claims and outcome at the Supreme Court in Reilly
They argued that:
(i) the 2011 Regulations are unlawful, since they did not fulfil the requirements of section 17A of the 1995 Act in “prescribing” the programmes, the circumstances by which individuals are selected, or the period of participation (“lawfulness”)
(ii) the Respondents did not receive the information required by Regulation 4 of the 2011 Regulations (“notification”)
(iii) the Government was required to have a published policy setting out the details of the relevant schemes (“publication”)
(iv) that the scheme constituted forced or compulsory labour contrary to Article 4 ECHR (“forced labour”).

Outcomes:
i) That the 2011 Regulations are ultra vires section 17A because they fail to prescribe

i) a description of the SBWA scheme or the PAC [Accepted];
(ii) the circumstances in which a person can be required to participate in those schemes [Rejected: the “prescribed circumstances” were sufficiently set out given the need for some flexibility];
(iii) the period during which participants are required to undertake work on those schemes [Rejected: An open-ended period was legitimate].

ii) That the requirement that Miss Reilly and Mr Wilson participate in a scheme was unlawful, because the notice provisions contained in regulation 4 were not complied with [Accepted re Reilly; rejected re Wilson].

iii) That it is unlawful for the Government to enforce the 2011 Regulations in the absence of a published policy as to the nature of the relevant scheme and the circumstances in which individuals could be required to undertake unpaid work [Accepted but no declaratory relief ordered: “The Secretary of State owed a duty as a matter of fairness to see that Miss Reilly and Mr Wilson were respectively provided with sufficient information about the SBWA [sector-based work academy] scheme and the CAP [Community Action Programme], in order for them to be able to make informed and meaningful representations to the decision-maker before a notice requiring their participation was served on them. However, it would be wrong to be prescriptive as to how that information should be given”].

iv) That Miss Reilly had been subjected to forced or compulsory labour contrary to article 4 of the European Convention on Human Rights (“the Convention”) and/or that the Regulations were contrary to article 4 [Rejected].

 

 

 

 

 

 

 

 

 

 

 

Daniel Gauntlett inquest: human rights issues and the ‘Middleton’ procedure

An inquest is to be held (on 10 December 2014 in Maidstone, Kent) into the death of Daniel Gauntlett who died in freezing temperatures outside a derelict bungalow in Kent. The death brought the notorious LASPO anti-squatting legislation into focus. An issue likely to be considered at the inquest is whether Gauntlett’s human rights were breached: did the state owe him a duty regarding his European Convention Article 2 right to life?

Campaigners have blamed his death on the LASPO legislation last year that banned squatting in residential buildings. They say he was barred from entering the building to protect himself from sub-zero temperatures last February [2013]. The inquest opens up the prospect of examining whether the legislation or the authorities acting under it bear any responsibility for Gauntlett’s death.

For that the inquest will have to be held under a “Middleton procedure”. Where public authorities might have been involved in a death, the procedure allows the coroner to examine whether the deceased’s right to life under Article 2 has been breached. As well as a standard finding on cause of death (by what means someone died) the coroner may in effect indicate where blame might lie by considering the circumstances of the death.

Campaigners want the coroner to look at how far Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 might have been responsible for Gauntlett’s death outside the bungalow in Aylesford, near Maidstone. At issue might also be the behaviour of police or social services.