The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere
Tuesday, 6 December 2016
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 CourtPresident (Lord Neuberger) - (noted here) - Mr Wright opened the casefor 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
This question goes to the “very heart of our constitutional
The government was elected on a clear manifesto commitment to hold an
in/out referendum and the referendum was provided for in the European Union
Referendum Act 2015.The government says
that the referendum was conducted in the “universal expectation, including in
Parliament, that the government would implement the result.”The means of leaving the EU are set out in
Article 50 Treaty on European Union (TEU). At this point in his submissions, the Attorney referred to remarks by the Foreign Secretary (then Philip Hammond MP) during the Commons Second Reading of the Bill (read the debate) where Mr Hammond referred to giving the people the "final say on our EU membership." (Transcript Page 5 line 23).
My note: The Conservative Party manifesto 2015 was
clear.The Referendum Act enabled the
referendum to take place and addressed questions such as who would be able to
vote.There was a challenge relating to
whether certain “ex-pats” could vote – see Shindler v Chancellor of the Duchy of Lancaster.
References in legal submissions to what was said in Parliament are problematic. A brief extract does not necessarily present the court with the complete picture and therefore such references could result in the need for detailed study of the parliamentary materials. The courts have (generally) set their faces against this. I will return to this point in a later post). What exactly was meant by giving the people the final say? It probably meant the final political say but unlikely to it meant the final legal say.
In March 2010, the House of Lords Constitution Committee published a report on Referendums in the UK. The government response to the report was issued in October 2010. See also the Briefing Paper on the Bill where it is noted that the referendum was advisory. The advisory nature of the referendum was also referred to, without correction, in the Second Reading debate by some members. At the end of the debate, Mr Hammond summed up by noting that - " .... we
surely should all be able to agree on the simple principle that the decision
about our membership should be taken by the British people ....."
The Act did not address the action required
if there was a LEAVE vote.It was silent
on the point.Is it then for the courts
to supply the omission of the legislature?
There was almost certainly a public expectation across
the UK that the result would be somehow implemented but it is very
debatable whether most voters even considered HOW this would be done. The referendum result only stated whether
voters wanted to Remain or Leave.
It is far from
easy to know what voters actually thought.Some have thought that the government would implement it but they might
equally have said that Parliament would implement the result.Many voters probably never considered HOW it
might be done.
One of the political slogans in the referendum
campaign relayed to taking back control.Did this mean control by Parliament or by the executive?More
likely it referred to a dislike of outside interference and so probably meant taking full national control of law-making.
Politically, much of this is highly debatable and
Parliament, via elected representatives, is more properly the place for
analysis of public opinion and expectation.In legal circles, questions were
raised prior to the referendum about the likely role of Parliament in the
According to the Attorney, the Divisional Court treated all of this as
legally irrelevant and concluded that prerogative power could not be used.The government case was that the Divisional
Court (Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ) was wrong about
the law.Use of the prerogative in these
circumstances would not only be” lawful but fully supported by our
constitutional settlement, in line with parliamentary sovereignty and in
accordance with legitimate public expectation.”
The Attorney went on to make three submissions:
foreign affairs prerogative is not an ancient relic but a contemporary
necessity.It includes the power to make
and withdraw from treaties.It is
essential to the effective conduct of public business.
My note:None of that was in dispute.
The prerogative operates as part of a dualist system, including in the EU context.
My note: Again, this is
not in dispute. There is argument as to how the dualism actually operates.What does the European Communities Act 1972
The prerogative operates wholly in accordance with Parliamentary sovereignty.Parliament has a clear understanding of the
constitutional function and usefulness of these powers and, where it chooses to
limit them, it does so carefully and specifically.
My note:It isn’t
disputed that Parliamentary sovereignty prevails over prerogative.Parliament can abolish prerogative power and
it can modify a power.A problem is that
Parliament is not always as clear as it might be with regard to the impact of legislation
on prerogative power.It becomes a
question of construction for the courts to examine the legislation and try to
ascertain Parliament’s intention.
The AG then developed points 1 to 3.
emphasized that prerogative is essential to the workings of government
including international relations.Other
common law jurisdictions (e.g. Australia, Canada and the USA) recognise
similar power for their own governance.In the last 12 months the government had signed 31 new treaties.Prerogative
power has been used by the government in playing a full part as a member of the
EU including in the process of shaping the EU legal order, “and all the ebb and
flow of EU law rights and obligations that that entails.”
My note:On the whole, Parliament has been content to
allow the government to get on with Treaty making and also with all the liaison
with EU institutions.As the European
Union developed from the original “Communities”, Parliament has enacted
amendments to the European Union Act 1972 so that new treaties are brought
within the ambit of the Act.Also, Parliament
has come more into the process of ratification of treaties due to the
Constitutional Reform and Governance Act 2010 – CRAG.
are not self-executing.Prerogative
actions of the government and Parliament giving effect as necessary to rights
and obligations on the domestic plane are legally and constitutionally
separate.The EU legal order is not an
exception to dualism: it is a clear example of it.
The European Communities Act 1972 provided for a “conduit
for the inflow of the legal order.”The
1972 Act does not and cannot create EU rights and obligations.The Act provides for the rights and
obligations “from time to time” existing on the international plane to be part
of domestic law.Those rights are
inherently liable to change, to be expanded, shrunk or withdrawn altogether
by action at the EU level.
My note:The “conduit” view of the ECA 1972 seems to
have come from the views of notable academic writers.EU rights and obligations can vary.The ECA 1972 gives effect in domestic law to
the rights and obligations as they exist at the moment.Section 2(1) of the ECA 1972 - which deals
with directly effective EU law – states “from time to time.”Section 2(2) of the Act enables domestic
legislation to be enacted to implement EU Directives.Directives bind member states as to the
result to be achieved but leave it to the member states to choose how to implement
Rights and obligations can
be removed from EU law by the same processes as adding a new right or
It seems to me to be a
very different issue if it is being argued that the entire corpus of EU rights
and obligation may simply be removed by prerogative power.The structure of the 1972 Act appears to
presuppose (a) membership of the EU and (b) that some rights and obligations
will always be present. Is it sensible to conclude that Parliament was content to allow prerogative to be used to render the ECA 1972 a useless empty shell lurking ineffectively on the statute book?
Parliament is sovereign and can choose to limit
the prerogative.The AG argued that
Parliament has done this sparingly and explicitly and always conscious of the
need for prerogative powers and the effective conduct of government
Reform and Governance Act 2010(CRAG) was the result of a lengthy process of
dialogue between Parliament and the executive and of wider public
consultation.CRAG brought in controls
over ratification of treaties but it did not bring in a requirement for primary
legislative authority and it did not seek to control the prerogative power to
make or withdraw from treaties.The
Attorney continued to say that Parliament has also considered, “with particular
care and in detail”, what the balance of legislation and prerogative power
should be in relation to the EU.Parliament has done this in a series of Acts from the ECA 1972 to the European Referendum
Act 2015.None of the Acts inhibit
withdrawal from the EU treaties or subject withdrawal to a requirement of prior
legislative authority.It is not as
though Parliament has been short of opportunities to impose such restrictions
if it had wanted to.In the 3 Acts
following the Lisbon Treaty (2008. 2011 and 2015) there is no basis for
inferring a legislative restriction on the prerogative in relation to Article
50 to begin the process of withdrawal.The government claims that Parliament has “consciously conserved” the
government’s role.The Attorney then
moved on to assert that Parliament knew the government could use prerogative
power to trigger Article 50 if the referendum result was Leave.Knowing this, Parliament “made no provision,
imposed no constraint, to prevent the government giving notice”that the UK was going to leave the EU.
The AG concluded his submissions by pointing out that
Parliament would be involved in the leaving process in various ways – e.g.
through Parliamentary debate and scrutiny, the procedures in the Constitutional
Reform and Governance Act 2010 and so on.Parliament has had full capacity and multiple opportunities to restrict
the executive’s ordinary ability to begin the Article 50 process and it has
chosen not to do so.“However much they
wish it had, those who support parliamentary sovereignty should ... respect
this exercise in parliamentary sovereignty.”
“The imposition of a legislative precondition by the courts
which Parliament did not choose to impose itself, cannot be supportive of
parliamentary sovereignty, but must be positively inconsistent with it.In the delicate balance of our constitutional
settlement, this court should, we submit, resist the temptation to make such an
It is clear that Parliament has not expressly done anything about the
prerogative in this area. Further, Parliament did not address a Leave
vote when it enacted the 2015 Referendum Act and it could have done so as it
did, for example, with the Alternative Vote referendum in 2011.
Contrary to the government’s argument
it seems equally consistent with parliamentary sovereignty that parliament gave
the people a vote on EU membership but reserved the final decision to itself
once the outcome of the referendum was actually known. This view is
supportable by the impact that losing membership will have on individual and
business rights as well as constitutional matters such as the Union of the four
nations comprising the United Kingdom. Can it truly be said that
Parliament was always content to leave it entirely to Ministers to use the
prerogative to withdraw from the EU when it has such massive consequences constitutionally as well as for business and individuals?
For my part I would doubt that Parliament was content to do that.
The Referendum Act could have addressed a leave vote but did not. Given
the studious silence in the Referendum Act, it should not be for the courts to
supply the omission of the legislature in this situation and to construct a
constitutional decision to leave the EU from a combination of the the
referendum and prerogative power.
On the question of Parliamentary
silence see UK Constitutional Law Association blog - David Howarth -
On Parliamentary silence
The submissions by the AG were the government's general position. The AG made his submissions without any questions from the Justices. Detailed submission for the government took up the remainder of the first day and a considerable part of Day 2. More of this later.