Happy New Year 2017

: A Very Happy New Year 2017 :

Benjamin Britten - A Carol for New Year

Brexit litigation in the Supreme Court - the case for Miller, Dos Santos and others (1)

As can be seen from the previous two posts - here and here - the government mounted a powerful assault against the High Court's decision that the Secretary of State does not have the power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union -R (Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).

Writing on the UK Constitutional Law blog (15th October), Professor Sionaidh Douglas-Scott noted the large number of commentators who were critical of the High Court judgment - (see, for example, the postings on the Judicial Power Project) - and who sought to provide what were perceived to be stronger arguments, often in highly technical, elaborate detail, that the government might use.  Much of this material was indeed used by the government to mount its appeal - e.g. the article about the prerogative by Professor Timothy Endicott.

Brexit litigation in the Supreme Court - Miller and Dos Santos - the government case (2)

This post continues looking at the arguments put forward by the government in its appeal against the High Court's decision in R (Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).  The High Court held that the Secretary of State does not have the power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.  The first post looked at the first 3 of 6 stages in the submissions put forward by Mr James Eadie QC on behalf of the government.

Day 1 - Morning and afternoon combined (PDF) - Mr Eadie from page 16. 

Day 2 - Morning and afternoon combined (PDF)

The government's written case

D)  Application -

Brexit litigation in the Supreme Court - Miller and Dos Santos - the government case (1)

The government's appeal to the Supreme Court was from the decision of the High Court R(Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).   Transcripts of the High Court hearing are at the Courts and Tribunals Judiciary website and the judgment was considered in 3 earlier posts on this blog.  The High Court held that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union. 

Day 1 - Morning and afternoon combined (PDF) - Mr Eadie from page 16. 

Day 2 - Morning and afternoon combined (PDF)

The government's written case

Brexit litigation in the Supreme Court - Devolution (4) - Government case

This is the 4th post on devolution issues in the Supreme Court of the UK Brexit litigation and looks at the submissions by the Advocate General for Scotland (Lord Keen of Elie QC) and by the Attorney-General for Northern Ireland (Mr John Larkin QC).

The government submitted a supplementary written case - Supplementary: Secretary of State for Exiting the European Union (devolution issues).

Advocate General for Scotland (AGS)

Transcript Day 2 at pages 74 to 117. 

The Advocate General also adopted as part of his case a paper on devolution issues by Dr Tony McGleenan QC and Paul McLaughlin.

The AGS addressed 3 themes.  (1) Sovereignty and the prerogative; (2) the constitutional status of the devolution legislation and (3) the Sewel Convention.

Brexit litigation in the Supreme Court - Devolution (3) - Lord Advocate for Scotland and Counsel General for Wales

The castle at Harlech

This is the 3rd post looking at the devolution aspects of the Brexit litigation in the Supreme Court of the UK.  The post looks at the submissions by the Lord Advocate for Scotland (Mr James Wolffe QC) and the Counsel General for Wales (Mr Mick Antoniw - represented in court by Mr Richard Gordon QC).

Lord Advocate for Scotland - Transcript Day 3 from page 143 and Day 4 to page 15

Scotland voted in favour of the UK staying in the EU by 62% to 38% (Turnout 67%) - with all 32 council areas backing Remain. 

Brexit litigation in the Supreme Court - Devolution (2) - Northern Ireland

In the European Union (EU) referendum held on 23rd June, the people of Northern Ireland voted (55.8% to 44.2% - turnout 62.7%) to remain in the EU and so it is not surprising to find strong feeling about the plans of the UK government to use prerogative power to give notice, under Article 50 Treaty on European Union, that the whole of the UK is to leave the EU.  If the UK government is successful then the notice could be given without formal reference to the devolved institutions of Northern Ireland.

High Court of Northern Ireland:

The first legal move came with the litigation in the High Court of Northern Ireland before Mr Justice Maguire - Re McCord's Application [2016] NIQB 85.  The court had two applications for judicial review: one by Mr Raymond McCord and the other by various applicants referred to as Agnew and others.  The judgment extends to 158 paragraphs.   Five principal issues were raised (para 9):

Brexit litigation in the Supreme Court - Devolution (1)

Arguments based on the various devolution settlements were put forward with a view to persuading the Supreme Court to declare that the UK government could not, without further intervention by Parliament, lawfully use prerogative power to give notice to the European Council under Article 50 (Treaty on European Union).  For its part, the UK (central) government argued that the various devolution settlements have not affected its power - (if it exists) - to give the notice.

With the exception of the  judgment of Maguire J in Re McCord's Application [2016] NIQB 85 there were no first instance hearings of the devolution questions - previous post on this case. There were Interventions by the Lord Advocate for Scotland and the Counsel General for Wales.  From Northern Ireland there was a Reference under the Northern Ireland Act 1998 from the Attorney General for Northern Ireland and also from the Court of Appeal Northern Ireland. (See this post for detail of Interveners).

The Supreme Court's oral hearings ran to a timetable and took place against a background of written cases (and supporting materials).

Brexit Litigation in the High Court - Overview of the High Court judgment (3)

This is the third and final Part 3 of my overview of the High Court's judgment in R (Miller and Dis Santos) v Secretary of State for Exiting the EU.  See Part 1 and Part 2.

The approach to the interpretation of the ECA 1972 as a constitutional statute – paras 82 to 85

At para 82 the court said - Statutory interpretation, particularly of a constitutional statute which the ECA 1972 is ... must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislating in the terms it did. This is part of the basic approach to be adopted by a court engaging in the process of statutory interpretation. Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them and not to undermine them. One reads the text of the statute in the light of constitutional principle. In the particular context of the primary legislation which falls for interpretation, can it be inferred that a Parliament aware of such constitutional principle and respectful of it intended nonetheless to produce effects at variance with it? 

Brexit Litigation in the High Court - Overview of the High Court judgment (2)

This post is Part 2 of my overview of the High Court's judgment in R (Miller and Dos Santos) v Secretary of State for Exiting the EU.  See also Part 1 and Part 3

The need for the ECA 1972 and its effect on the law of the United Kingdom

Para. 41 of the judgment begins by stating that, as a practical matter, by reason of the limits on its prerogative powers ... the Crown could not have ratified the accession of the United Kingdom to the European Communities under the Community Treaties unless Parliament had enacted legislation.   

The words “as a practical matter” are important here.  In 1972, there was no legal requirement for Parliament to be involved in the ratification of a Treaty.  There was a constitutional convention – known as the Ponsonby Rule – that Treaties subject to ratification were to be laid before both Houses of Parliament for 21 sitting days before ratification took place.  A useful explanation of the Rule and the reasons for it may be read in this 2001 report.

Enacting legislation before ratification avoided the problem that would arise if the government had committed the UK internationally but Parliament had then refused to enact the legislation needed to give effect to the Treaty domestically.  The European Communities Act 1972 received Royal Assent on 17th October 1972 and the instrument of ratification was deposited on 18th October 1972.

Brexit litigation in the High Court - Overview of the High Court judgment (1)

"It may be there has never been a statute having such profound effects on so many dimensions of our daily lives"  - Lord Justice Laws speaking of the European Communities Act 1972 in Thoburn v Sunderland City Council [2003] QB 151 (DC)

This post and the posts to follow, look at the Brexit litigation before the High Court and in the Supreme Court of the UK.  The High Court judgment is R(Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin) from which the government appealed.   Transcripts of the High Court hearing are at the Courts and Tribunals Judiciary website.  The Court of Appeal (Civil Division) did not participate in this case.   When the appeal was heard in the Supreme Court there were additional elements including, in particular, devolution questions and a reference from the Court of Appeal of Northern Ireland.  

By way of background, it is useful to note here the process which led to the UK’s accession to the Treaties and how the European Communities Act 1972 came about – previous post of 24^th August. It is a good example of the UK’s dualist approach to the relationship between Treaties and Domestic Law.

Catch up

A)  Here is a brief "catch up" on matters relating to a few older posts.

1.  The Edlington (S. Yorkshire) brothers have been granted indefinite anonymity - BBC News 9th December and previous post.   The brothers were sentenced to indeterminate detention for offences against three others.  The offences included causing grievous bodily harm, robbery and causing or inciting a child under the age of 13 to engage in sexual activity.  In 2012 a Review by Lord Carlile QC of the Edlington case was published - see the report

2.  The Scottish High Court of Justiciary has rejected an application for "Criminal Letters" brought by relatives of those killed in Glasgow when, in December 2014, a bin lorry went out of control - BBC News 9th December  

What did Parliament mean? Can Parliamentary materials be allowed to tell us?

A previous post looked at the Mountains of Material presented to the Supreme Court in the Brexit appeal.  Very early in the appeal, the Attorney General referred to what the Foreign Secretary had said during the second reading of the European Union Referendum Bill - see pages 5/6 of the Day 1 transcript.

The transcript for 7th December, contains this brief exchange between Lord Pannick QC and Lord Neuberger - at page 4 line 3 to page 6 line 17.   Lord Neuberger stated: - "The only trouble with looking at what was said on the floor of the House, and as you say, we don't want to go too much into this, is what  a minister or somebody else says does not necessarily represent the reason why people vote, or what they believe when they vote. It is like going into what people say about their contracts when  construing their contracts, and that way madness can be said to lie, because you then start looking at everything said in Parliament and balancing up -- it can be a very treacherous course."  The matter was basically left there.

Absent from the feast?

One matter was very conspicuous by its absence in the Supreme Court Brexit hearing this week.  The absentee was the question of whether there ought to be a preliminary reference to the Court of Justice of the EU on whether a notice under Article 50 (Treaty on European Union) may be withdrawn unilaterally once given.  The question was not overlooked by the parties in their written cases - see, for example, the written case of Miller at pages 13 and 14 where it is said that the parties were content to proceed on the basis that notice could not be withdrawn. 

The Brexit appeal ~ mountains of material

The argument in Brexit case is notable for the extensive citation of  cases, Acts of Parliament, historical material, academic opinion, the views of notable lawyers and matters said in Parliament. This post gives a flavour only of the types of material allowed into the case.

On Day 1 (5th December) - transcript here - James Eadie QC (for the government) referred early in his submissions to an article on the prerogative by Professor Endicott (Balliol College, Oxford). I believe that the article referred to was dated 1st December 2016 - Parliament and the Prerogative: from the Case of Proclamations to Miller.

An article written by Lord Millett (supportive of the government's position) gets a mention at page 42 and Lord Millett's "concept of inherency" is referred to again at page 46 and at page 132 Eadie says that the government adopts Millett's analysis at a "more fundamental level."  The court returned to Millett on Day 2 - transcript at pages 42 and 43.  (Lord Millett - Lord of Appeal in Ordinary 1998 to 2004). 

Opposition Day debate on Brexit

As the Supreme Court hears the government's appeal in the Brexit case, it is worth noting this Opposition Day debate in the House of Commons today (7th December).  Here is the motion as passed by the House:

Resolved, That this House recognises that leaving the EU is the defining issue facing the UK; notes the resolution on parliamentary scrutiny of the UK leaving the EU agreed by the House on 12 October 2016; recognises that it is Parliament’s responsibility to properly scrutinise the Government while respecting the decision of the British people to leave the European Union; confirms that there should be no disclosure of material that could be reasonably judged to damage the UK in any negotiations to depart from the European Union after Article 50 has been triggered; and calls on the Prime Minister to commit to publishing the Government’s plan for leaving the EU before Article 50 is invoked, consistently with the principles agreed without division by this House on 12 October; recognises that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further calls on the Government to invoke Article 50 by 31 March 2017.

Who are these Scottish gentlemen?

Followers of the UK government's appeal in the Brexit case will have seen that two Scots lawyers are also involved.

On Tuesday 6th December, the court heard from the Advocate-General for Scotland (Lord Keen of Elie QC).   The Advocate General for Scotland is a Minister of the Crown and is one of the three UK Law Officers. Along with the Attorney General and the Solicitor General for England and Wales, the Advocate General provides legal advice to all UK Government Departments on a wide range of issues including human rights, European law and constitutional law. The Advocate General is the UK Government’s principal legal adviser on Scots law and its senior representative within the Scottish legal community.

Brexit appeal Day 1 (5th December) - My notes on the Attorney-General's submissions

This post takes a look at the submissions by the Attorney-General (Jeremy Wright QC) in the appeal by the government to the Supreme Court.   Following opening remarks by the Court  President (Lord Neuberger) -  (noted here)  - Mr Wright opened the case  for the government - Transcript for Day 1

The AG began by stating that the case was of “great constitutional significance in which there is understandable and legitimate interest.”  The claimants had brought the case perfectly properly and it was perfectly proper for the court to decide it because the case involved a clear question of law:

whether “the Government has the legal power to give notice under Article 50 of the Treaty on European Union to begin negotiations for the UK's withdrawal from the EU, or whether further specific legislative authority is required to do so.” 

This question goes to the “very heart of our constitutional settlement.”

The Brexit appeal

Updated 9th December

On 3rd November, the High Court handed down its judgment in a case that, for ease of reference, we may just call Miller - here is the High Court judgment.  The court concluded that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.  The government appealed that decision to the Supreme Court.  The High Court judgment stands unless the Supreme Court overrules it. 

Others then became involved as "interested parties", or as "interveners" (e.g. the Lord Advocate for Scotland and the Counsel General for Wales) and there were also two "references" to the court from Northern Ireland.


Summaries:

• R (on the application of Miller and Dos Santos) (Respondents) v Secretary of State for Exiting the European Union (Appellant)
• Reference by the Attorney General for Northern Ireland - In the matter of an application by Agnew and others for Judicial Review
• Reference by the Court of Appeal (Northern Ireland) - In the matter of an application by Raymond McCord for Judicial Review

More information:

Supreme Court’s website and Article 50 Brexit appeal - links to all the written cases

This previous post offered a pre-hearing summary of the appeal.

Transcripts:

Day 1 - Morning and afternoon combined (PDF) 

Day 2 - Morning and afternoon combined (PDF)

Day 3 - Morning and afternoon combined (PDF)

Day 4 - Morning and afternoon combined (PDF)

Investigatory Powers Act 2016

The Investigatory Powers Act 2016 has received Royal Assent.  Here is an excellent overview of the Act by David Anderson QC (the Independent Reviewer of Terrorism Legislation).

LIBERTY have commented about the Act describing it as a 'sad day for democracy' and claiming that ' .... This new law is world-leading – but only as a beacon for despots everywhere ...'

The Solicitor's Journal is concerned about the impact that the legislation may have on legal privilege.

It is an extensive Act with 9 Parts and 10 Schedules.  Much of the Act will come into force in accordance with "Commencement Orders."

Terrorism legislation:

The Brexit appeal - the scene is set

This post takes an admittedly simplified and hopefully straightfoward look at the forthcoming hugely important Brexit case to be heard in the Supreme Court of the UK commencing Monday 5th December - (Supreme Court).  The European Union (EU) referendum held on 23^rd June 2016 resulted in an overall UK majority to leave the EU but, significantly, voters in Scotland and Northern Ireland voted to remain.  BBC – Referendum results.

The UK is a member of the EU because the government signed the various Treaties in 1972 and Parliament then enacted the European Communities Act 1972 to give effect to EU law in the UK - (see Note 1 below).  It is an Act to “make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel  Islands, the Isle of Man and Gibraltar.”

 

The Treaty on European Union contains Article 50 enabling a Member State to leave the Union.  The article requires (a) that a decision to leave be made in accordance with national constitutional requirements and (b) that notice of the decision is given to the European Council.  This triggers the leaving process and will at some point result in EU law ceasing to apply in the UK.  Lawyers disagree on whether the UK could unilaterally decide to revoke its notice and thereby reverse the process.  A definitive legal answer to that question would necessitate a journey to the Court of Justice of the EU (CJEU).  If the Supreme Court were to consider that an answer was necessary to decide the appeal then, as a final court of appeal, a reference to the CJEU would have to be made - (see Note 2 below).  There is generally a discernible lack of appetite for that course.