CAN the individual rights of 64 million UK citizens be made to disappear at the stroke of a pen?
In my column on October 1 I wrote about the British Government’s power to use the ancient Royal Prerogative to push BREXIT through, regardless of Parliament.
This week the UK’s Attorney General, Jeremy Wright Q.C. told the London High Court hearing the legal challenge over Theresa May’s right to trigger article 50 that the Royal Prerogative is suitable for giving notice of the UK’s secession from the EU.
The case has been brought by a number of claimants led by Gina Miller, a London-based investment manager for the firm SCM Private. Crowds of Brexit and Bremain supporters have demonstrated daily outside the court in a sign of huge public interest.
As the case proceeds, I think that it will be held that the Prime Minister can use the Royal Prerogative to side-step Parliament, but that this will only be the tip of an iceberg of complicated legal issues which will have to be determined initially by the special three-judge High Court bench currently hearing the claim.
It is my understanding that because of the urgency of the case, any appeal may go straight to the Supreme Court in London, avoiding the Court of Appeal, which is normally the next tier in the English Court hierarchy.
The hope is that the matter will be finally decided by the Supreme Court before Christmas (very much in the same way as in 1914 it was thought that the war would end before that holiday).
The Supreme Court (which replaced the ‘House of Lords’ in October 2009) is the highest domestic court, not just for England, but for the whole of the United Kingdom.
So, what other legal issues, apart from the use of the Prerogative, will tax the top judges of the Kingdom?
So far, most of the focus, post-23rd of June 2016 has been on the rights and obligations as between the Member States of the European Union – the UK and 27 others.
However, as the litigation proceeds, I envisage that attention will turn to individual civil rights.
As a matter of English, Scottish, Northern Irish and Gibraltarian laws, have the citizens of the United Kingdom and Gibraltar acquired “legitimate expectations” arising from UK membership which, it would be wrong in law for the executive government in Whitehall to do away with?
For example, is the UK Government able to withdraw from its citizens the rights of free movement throughout the EU that they have grown to expect? Are constitutionally protected private rights engaged by the Article 50 trigger? Can the courts adjudicate on this, in the first place?
Expectations often create enforceable legal rights.
Moreover the matter goes further than mere expectation because Article 20 (1) of the Treaty on the Functioning of the European Union states that: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”
Even in Roman times the so called jus soli (the right of a person born in the Empire to citizenship) was remarkably difficult to eliminate. In our time it remains difficult to withdraw citizenship even from recently naturalized convicted terrorists.
Can the individual rights of 64 million UK citizens be made to disappear at the stroke of a pen?
Therein are going to lie great legal difficulties which have nothing to do with Frau Merkel or Messrs Shultz and Junckers.
To complicate matters even further, the European Court of Justice retains jurisdiction in relation to matters pertaining to the rights of citizens of the EU – that would of course include an attempt at removing those rights.
There is a school of thought that the European Court of Human Rights might also have jurisdiction. Thus, all is set for the mother of all legal cases and we could end up with a Brexitier’s nightmare of the final legal decision being made in… Luxembourg!
In an earlier piece still, I said that the only certain thing is uncertainty, and I think that by the end of the year the issues under judicial as well as political scrutiny are going to be very different indeed to the ones that everyone has been talking about and giving confident analysis on over the last few months.