Monday 19 December 2016

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.

The ECA72 was of course required to give effect to EU law in the domestic law of the jurisdictions in the United Kingdom.

ECA72 as a constitutional statute

The notion of a “constitutional statute” began with the judgment of Laws LJ in Thoburn v Sunderland City Council [2003] QB 151 (DC).  Such statutes are protected from IMPLIED repeal and the courts have recognised the ECA72 as such a statute. 

The provisions of the ECA72

The court examined the ECA72 at paras. 45 to 54 and noted the LONG TITLE:

"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"

and also the effects of sections 2(1), 2(2), 2(4) and 3(1).  See the legislation here.

Note: Section 2(1) deals with “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties ...... as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom .....”  

Section 2(1) is clear that it applies to rights etc arising “from time to time” and this is recognition by Parliament that the rights available under EU law will vary  and that Parliament was content to allow this to happen through the mechanism of section 2(1).  Negotiations between the UK government and the EU institutions are conducted by Ministers under prerogative powers in foreign affairs and this is also recognised by Parliament.  Nevertheless, it seems to press section 2(1) rather too far to say that Ministers could therefore simply remove all the available rights and thereby leave section 2(1) as an empty shell because there are not rights etc to which it can apply.

The right of withdrawal from the EU - Paras.55 and 56.

During the hearing, the court raised the question of whether, before Article 50 came into being, the UK could have withdrawn from the EU.  The general view was that it would have been possible under either (or both) of two possible methods.  The Attorney general maintained that one method may have been under customary international law.  The claimants argued that the Vienna Convention on the Law of Treaties Art 59 provided a withdrawal route.

The court concluded that this did not have to be resolved.  On either view, withdrawal was possible and so Parliament must be taken to have had that possibility in mind when enacting the ECA72.  Also, on either view, the question of who was entitled (Parliament or Executive) to commence withdrawal would have still been there.

Note: Although it is not discussed in the High Court judgment,  the government certainly considered in 1975 that withdrawal was possible.  On this see the July 2015 Commons Briefing paper looking back at the 1975 referendum and also see, for example, the statement by Edward Short MP (Lord President of the Council) during the Second Reading on the Referendum Bill where Mr Short simply stated that:

“In law, as the White Paper points out, our continued membership of the Community can be reversed at any time by an Act of Parliament.”

Mr Short did not discuss the form such an Act might have taken and a Bill was never brought forward because in the 1975 referendum the people voted to remain.  

On the question of withdrawal in 1975 see also the government pamphlet as presented to the public prior to that referendum.  For an interesting lecture by Professor Vernon Bogdanor on the 1975 referendum see Gresham College 15th April 2014.


 The parties presented an account of different categories of rights arising under EU law and this is addressed at paras. 57 to 61.  The court considered the account to be rather simplified and added that it is important to bear in mind that there are other substantial areas of EU law such as the schemes of regulation which take effect as part of the law of the United Kingdom.  [Note: EU law does not categorise rights in this way].

Para. 58-59.  Category (i) rights - some rights could be replicated in domestic law if the UK left the EU – e.g. Working Time Directive – provided that Parliament chose to do so.  

[Note: Although there has been mention of a Great Repeal Bill, no such Bill has been published and there is no clear statement regarding the detail of what it may or may not contain.  The idea appears to be to freeze the law on the day the UK leaves and then Parliament can make changes in its own time]. 

Para. 60 – Category (ii) rights - those enjoyed by British citizens and companies in relation to their activities in other Member States, as provided for by EU law, for example pursuant to rights of free movement of persons and of capital and rights of freedom of establishment.  If a British citizen resides in another Member State pursuant to EU rights of free movement, EU law requires the authorities and courts of that Member State to respect and give effect to those rights. It also prohibits the authorities in the United Kingdom from placing impediments in the way of the exercise of such rights.

Para. 61 – Category (iii) rights - those which have an effect in the domestic law of the United Kingdom and which would be lost upon withdrawal from the European Union and which could not be replicated in domestic legislation.  These include the right to stand for selection or, later, for election to the European Parliament and the right to vote in such elections.  The right to seek a reference to the CJEU is another example.  The court gave other examples. 

The effect of withdrawal of the rights  - Paras. 62 to 66.

The claimants contended that Parliament by the ECA 1972 intended to give effect to each of these categories of right. They did so to emphasise the extent of the change which would be brought about by withdrawal pursuant to Article 50, in order to reinforce their argument that the Crown could not effect such changes by the exercise of its prerogative powers.

The Secretary of State maintained that whatever the extent of the changes upon withdrawal, Parliament has left the Crown with prerogative power to give notice under Article 50.

He also argued that the claimants exaggerate the extent and the degree to which categories (i) to (iii) were created by Parliament by the ECA 1972.  The Secretary of State accepted that category (iii) rights would be lost upon withdrawal. 

The court said that the Secretary of State sought to minimise the extent of loss of category (i) rights and that he disputed that category (ii) rights were the product of enactment of the ECA 1972.

For Category (i) rights - the court decided that the claimants were correct in their argument that it was the ECA72 that is the principal legislation under which these rights are given effect in domestic law of the United Kingdom.  It was no answer to their case to say that some of them might be preserved under new primary legislation, yet to be enacted, when withdrawal pursuant to Article 50 takes place.  The objection would remain that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 of effect.

For Category (ii) rights – here the Secretary of State presented what the court referred to as “a highly formulistic argument” which was “divorced from reality.”   The Secretary of State argued that these were rights created by EU law and not by the ECA 72.  The rights apply to UK citizens because of the combination of EU law on the international plane and domestic law.   It was therefore possible, the Secretary argued, for the international element to be terminated under the prerogative in foreign affairs.  The court preferred the view that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other Member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972. Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament. Accordingly, the claimants are entitled to say that it would be surprising if they could be removed simply through action by the Crown under its prerogative powers.

For Category (iii) rights, the government accepted that they would be lost on exit from the EU.  This alone was sufficient, in the court’s view, for the claimant’s argument.

Note: After the High Court judgment, there was a mass of academic opinion about how the ECA72 actually operated.  It was a “conduit” through which EU rights entered domestic law but it was not a grantor (or creator) of such rights.  The “conduit” could therefore be closed off by government using the prerogative purely on the international plane and that would leave the ECA72 as an empty shell with nothing on which its provisions could bite.

The court then turned to examine the legislation subsequent to ECA72.


At paras 67-72 the court took a brief look at the European Union (Amendment) Act 2008; the European Parliamentary Elections Act 2002, the European Union Act 2011 and the European Union (Referendum) Act 2015.  In para 68 the court noted that section 6 of the 2008 Act imposed Parliamentary control over Ministers in relation to certain decisions to increase the powers of the EU institutions but it did not provide for any similar control in relation to a decision to give notice under Art 50.

Note:  None of the Acts referred to in paras. 67 to 72 imposed any requirement(s) with regard to Art 50.  The Acts show that Parliament was taking fuller control over the actions of Ministers in relation to the European Union.  The 2011 Act imposes a detailed scheme of controls including the requirement, in some instances, to hold a referendum before a new treaty may be ratified – see, for example, section 2 – (previous post EuropeanUnion: When must a referendum be held).

 There is no mention at this point in the judgment of Part 2 of the Constitutional Reform and Governance Act 2010 (CRAG) which placed the Ponsonby Convention on a statutory basis.

Submissions of the parties – as set out in the judgment – paras 73 to 76.

The court then set out in some detail the primary submissions of the claimants and the Secretary of State and these merit a full reading.  They are set out in the table at the end of this post.

The nub of the Secretary of State’s argument:

At paras 77 to 81 the court stated that the Secretary of State’s argument amounted to saying that Parliament has been content to leave the enjoyment by UK citizens of EU rights in the hands of the Crown acting on the international plane.  The Secretary of State’s argument went too far – para. 81.

..... this is finalised in Part 3.....

: Submissions of the Claimants and the Secretary of State :

The claimants' primary submissions are as follows:

       (1) The question in this case is to be approached on the basis that it is a fundamental principle of the UK constitution that the Crown's prerogative powers cannot be used by the executive government to diminish or abrogate rights under the law of the United Kingdom (whether conferred by common law or statute), unless Parliament has given authority to the Crown (expressly in or by necessary implication from the terms of an Act of Parliament) to diminish or abrogate such rights.
(2) No words can be found under which Parliament has given any such authority either expressly or by necessary implication in the ECA 1972 or subsequent legislation relating to the European Union.
(3) The giving of a notice under Article 50(2) of the TEU would pre-empt any ability of Parliament to decide on whether statutory rights should be changed. The notice would automatically abrogate in due course category (iii) rights and the rights under the 2002 Act; it would remove the category (i) rights as enacted by Parliament in the ECA 1972; and it would remove from Parliament decisions on the maintenance of category (ii) rights.
(4) Ratification by Parliament of a withdrawal treaty made pursuant to Article 50(2) (if any such treaty was agreed between the United Kingdom and the European Union) would not cure the pre-emption, as the effect of giving the Article 50(2) notice would in effect inevitably remove the real decision from Parliament.
(5) Parliament had not given authority by the 2015 Referendum Act for the Crown to give notice of withdrawal under Article 50.

The Secretary of State submits as follows:

(1) Parliament could choose to leave (or not to abrogate) prerogative power in the hands of the Crown, even if its use would result in a change to common law and statutory rights,

(2) It was clear from ex p. Rees-Mogg that, unless express words could be found in a statute, Parliament could not be taken to have abrogated the Crown's prerogative powers in relation to the EU Treaties so that notice under Article 50(2) could be given with the consequences that followed in the form of either a withdrawal treaty or automatic departure. Alternatively, applying the guidance in De Keyser's Royal Hotel in the context of the EU Treaties, Parliament could not be taken to have abrogated such prerogative power unless by express words in a statute (or possibly by necessary implication from a statute).

(3) No words could be found in the ECA 1972 or any other statute which abrogated that power expressly or by necessary implication.

(4) In particular, it is notable that neither the 2008 Act nor the EUA 2011 restricted the Crown's prerogative power to give a notice under Article 50(2), even though that provision had come into existence by the time they were enacted. On the contrary, both Acts implicitly recognised that such prerogative power existed as no restriction was placed on the power of the Crown to invoke that right exercisable under the TEU, as amended by the Lisbon Treaty.

(5) Nor were there any express words in any United Kingdom legislation that abrogated the Crown's prerogative power to withdraw from the Treaties as distinct from amending them. That was because the intention of Parliament, in particular as appears from the EUA 2011, was directed at restricting the increase in the powers of the European Union and its encroachment on Parliamentary sovereignty, not at restricting the ability to withdraw from the European Union and thereby restoring Parliamentary sovereignty.

(6) As it is likely that any withdrawal treaty would contain a provision requiring ratification, the withdrawal treaty would in any event have to be approved by Parliament by way of the negative resolution procedure in the CRAG 2010 before that occurred; if it contained provisions requiring application in domestic law, primary legislation would also need to be introduced to allow that. This would be consistent with the proper sequencing of the respective functions of the Crown and of Parliament, as had invariably happened in the past: once an EU treaty had been made, domestic law was brought into line by Parliament through legislation and then the treaty was ratified.

(7) Although the 2015 Referendum Act does not itself confer statutory power on the Secretary of State to give notice under Article 50(2), the implication from the fact that the 2015 Referendum Act is silent on the issue whether legislation is required before notice could be given under that Article supported the contention that Parliament accepted the continued existence of the prerogative powers of the Crown to give such notice; it certainly contains no restriction on such prerogative power as may still exist.

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