Saturday 31 December 2016

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.

On Day 2, the Supreme Court heard arguments from Lord Pannick QC (acting for Gina Miller).  Lord Pannick's submissions extended into Day 3.  Also on Day 3, the court heard Dominic Chambers QC (acting for Mr Dos Santos).  On Day 4, Helen Mountfield QC appeared for interested parties Graham Pigney and others; Manjit Gill QC appeared for interested parties AB, KK, PR and children and then Patrick Green QC for the "ex pat" interveners George Birnie and others.

Written cases were submitted to the court: Gina Miller; Deir Tozetti Dos Santos; Graham Pigney and othersAB, KK, PR and children

Lord Pannick - Day 2

Transcript Day 2 - Morning and afternoon combined - 4 page version (PDF) - Lord Pannick from page 143.

The case for Gina Miller was that the prerogative power to enter into and terminate treaties does not allow ministers to nullify statutory rights and duties.  In any event, Parliament did not intend that the rights and duties, which it had created by the ECA72, could be nullified by Ministers acting in the international plane.  The court had heard that the ECA72 was a conduit creating only rights and obligations that were contingent on the prerogative power to terminate.

The ECA72 has constitutional status and it created a new source of domestic law and gave that source priority.  Lord Pannick then said (pg 144):  "The appellants' argument, however, if correct, would mean that the 1972 Act, far from having a constitutional status, would have a lesser status than any other act, a lesser status than the Dangerous Dogs Act because on the appellants' argument, Parliament has made this fundamental constitutional change to domestic law only for as long as the executive does not take action on the international plane to terminate the treaty commitments.  We say that in the context of an act of Parliament, which expressly states, expressly states in section 2(4), that its provisions take priority, even over other legislation, the words "passed or to be passed", it would, with respect, be quite extraordinary if nevertheless the 1972 Act could be set at nought by the actions of a minister acting without parliamentary authority."

Lord Sumption asked whether "rights and duties" was being confined to those in the substantive law or did it extend to those that would be lost if the UK left the EU.  Lord Pannick said that the two were connected and he was not limiting rights and duties because the ECA72 created a new source of rights and duties and this was part of its constitutional status.  At pg 145 - it was inherently unlikely that Parliament, when it enacted the ECA72, intended that something so fundamental could be set aside by a Minister.

At page 146, Lord P  mentioned "debate" in 1972 about whether Parliament itself could revoke the ECA72.  The "debate" was part of submissions made by Mr Blackburn - (Blackburn v Attorney General 1971).  It pointed toward the unlikelihood of Parliament just leaving matters to Ministers.  It would require the strongest indications in the materials for the court to accept any such proposition.

Lord P then put 7 reasons which he would develop in argument.

1. The 2015 Act did not assist the appellants

2.  He would submit that prerogative treaty power could not be used to nullify statutory rights and obligations or to nullify a new constitutional order that Parliament had created.

Lord P's case was that there was NO relevant prerogative power.

3.  The court had to have regard to important principles of statutory interpretation (pg 148).  The appellant had to show that Parliament conferred a power to nullify a statutory scheme.

4.  In any event, in the light of the purpose and content of the ECA72, Parliament did not intend that what it had created could be nullified by prerogative power (pg 149).

5.  The appellant was wrong regarding De Keyser as somehow setting out an exclusive principle as to the limits on the use of prerogative power.  Lord P said there was no relevant prerogative power here and, in any event, ex parte Fire Brigades Union recognised that it was not open to Ministers to use prerogative powers to frustrate a statutory scheme.

6.  The reliance on post 1972 Acts did not assist the government.  If there was no prerogative power to nullify the ECA72 then the question is whether Parliament intended by later legislation to confer "a new power to that effect."  Only the clearest of statements by Parliament could do that - page 150.

7.  It was no answer to say that Parliament can choose to be involved.  Notification will cause the nullification of statutory rights and obligations and a statutory scheme of fundamental importance. Only Parliament could authorise that.  [Note: The notification will certainly put in train a process that will eventually lead to the removal of EU-based rights and obligations.  This is all the more so if the notice cannot be withdrawn].

Point 1 - the 2015 Act -

Page 151, Lord P turned to his first point.  The 2015 Act said nothing about the consequences of the referendum decision.  When Parliament wishes to make a referendum binding it says so.  Mr Eadie had said that the decision was given to the people.  This was difficult to understand when government had resisted an amendment to give legal force to the referendum and explained why they were doing so.  Lord P then referred to the Parliamentary debate which prompted discussion about the authority for doing this.  The discussion here continued to page 154 and please see here the consideration of this point in this previous post.  The key point in the debate was, for Lord Pannick, that the Minister had said that the referendum was advisory.

The 2015 Act did not address any consequences, far less, did it address the process by which the UK would leave the EU (pg 155).  Whatever the scope of prerogative power, it is unaffected by this Act.

The referendum result may justify the use of the prerogative power to notify BUT the question for the court is one of law about whether the appellants have a prerogative power to notify.

The political significance of the referendum is not a matter for the court because it is irrelevant to the issue of whether there is prerogative power to set aside the ECA72.

Pages 156 and 157 discuss the point about the same question being put to Parliament.  Lord P argued that it would necessarily be entirely the same question because Parliament may choose to do other things.

Lord Neuberger asked about what the Foreign Secretary had said in the Commons.  Lord Pannick said that there were various statements at various times and said that Mr Chambers would take the court to some of them.

Point 2 - Limits of prerogative power regarding treaties.  The appellant failed to recognise that the treaty power may not be used to nullify, frustrate, domestic law, in particular, rights or schemes created by Parliament.  The Crown had a broad treaty making power because what it agrees on the international plane cannot affect, does not affect, content of domestic law (pg 159).

The prerogative power is not an independent overarching power.  It is defined and limited by other principles of constitutional law, in particular, parliamentary sovereignty.  Lord P then referred to speeches by Lord Oliver in J.H. Rayner (Mincing Lane) Ltd v Department of Trade and by Lord Hoffmann in Higgs v Minister for National Security.  The appellant emphasised the power but sought to avoid the corollary that it was for Parliament to change domestic law.  The power ends where domestic rights begin.

Examples of Ministers seeking to frustrate statutory or common law rights are rare (pg 161).  Lord P then referred the court to The Parlement Belge; Laker Airways; Walker v Baird and the  Canadian TURP case.  See here the argument at pages 161 to 173.  Lord P said - "Looking at all the material, and the court has all the material, we say there is no relevant prerogative power in this case. The prerogative cannot be used to remove rights and duties create, far less to remove a whole body of law.  That is our second submission."

Transcript Day 2 - Morning and afternoon combined - 4 page version (PDF)

Point 3 - Statutory interpretation - 

In any event, there are relevant principles of statutory construction (pg 173). The consequence of those principles is that the appellant must show, the burden is on him, he must show that Parliament has clearly conferred on him a power to defeat statutory rights and duties, to defeat a body of law that Parliament has created.   There were three relevant principles and here we see some elegant reasoning.

The first principle is the principle applicable in relation to Henry VIII powers, that is a delegated power conferred by Parliament on a minister to use subordinate legislation to amend or repeal primary legislation.  Lord P referred to R (Public Law Project) v Lord Chancellor at para 27 where Lord Neuberger referred to House of Lords decisions approving what Lord Donaldson MR had said in McKiernon v Secretary of State for Social Security - "Whether subject to the negative or affirmative resolution procedure, subordinate legislation is subject to much briefer, if any, examination by Parliament. It cannot be amended ... the duty of the courts being to give effect to the will of Parliament ... it is in Lord Donaldson's judgment legitimate to take account of the fact that a delegation to the executive of power to modify primary legislation must be an exceptional course and if there is any doubt about the scope of the power conferred upon the executive or upon whether it has been exercised, it should be resolved by a restrictive approach."

In the light of this, Lord P submitted that the courts would be even more reluctant to recognise in the executive a power to defeat statutory rights or a statutory scheme when Parliament has conferred no such express power on the executive (pg 174-5).  Ministers cannot sensibly claim to have a greater power to interfere with primary legislation by use of the prerogative than they would have if Parliament had conferred a Henry VIII power.

Secondly there is the principle of legality.  The courts presume that Parliament did not intend to defeat or frustrate fundamental statutory rights or basic common law principles unless Parliament clearly so provides (pg 175).  Therefore it is unlikely that the courts would conclude that Parliament intended to authorise the use of prerogative powers to defeat important rights and principles created by Parliament, unless Parliament has itself clearly so provided.

Thirdly, implied repeal is excluded given the constitutional nature of the ECA72.  Only a clear later statute will be recognised as demonstrating intent to repeal or amend it (pg 176).  Lord P then referred to the High Court's judgment at para 88:  "Moreover, the status of the ECA 1972 as a constitutional statute is such that Parliament is taken to have made it exempt from the operation of the usual doctrine of implied repeal by enactment of later inconsistent legislation: see Thoburn v Sunderland City Council, at [60]-[64], and section 2(4) of the ECA 1972. It can only be repealed in any respect if Parliament makes it especially clear in the later repealing legislation that this is what it wishes to do. Since in enacting the ECA 1972 as a statute of major constitutional importance Parliament has indicated that it should be exempt from casual implied repeal by Parliament itself, still less can it be thought to be likely that Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative powers."

Point 4 - the purpose and content of the ECA 72

Page 178. The ECA72 did not contain any express provision allowing rights to be removed by executive action and there are strong indications that Parliament did not intend that.

The appellant failed to recognise the nature and significance of the ECA72 as a new source of law approved and authorised by Parliament. This new legal order was not just about rights between States or giving individuals rights in international law (as per European Convention on Human Rights).  The ECA72 recognised rights and duties at international level which take effect in national law and which courts are obliged to protect and enforce.  Those rights and duties have priority over inconsistent national law irrespective of when that national law was enacted - ECA72 s.2(4).  The Court of Justice of the EU conclusively determines the interpretation and scope of the rights and duties (pg 180).  Those features were established before the UK joined the European Communities.  Parliament had brought this new legal order into effect.

Lord P then referred to paragraph 7 of the written case regarding the point that the ECA72 was enacted before the Treaty of Accession was ratified.  (See page 11 - here).

Lord P then referred to section 18 of the European Union Act 2011. This made EU law to which ECA72 s2(1) applied dependent on a continuing statutory basis.  [Note: The Explanatory notes to the 2011 Act are worth noting.  They are not part of the Act.  According to the notes, Parliament was asserting that EU law was not part of the UK legal order independently of statutory authority].  Lord P said that section 18 was a strong indication that Parliament thought and reaffirmed that it was in control.  It was difficult to reconcile this with the contention that it all depends on prerogative power.  The discussion at Transcript pages 183-4 should now be noted.

At page 185, Lord P turned to the Robinson case and the statements therein by Lord Bingham.  At para 11 of Lord Bingham's speech, he said: "The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. So to categorise the Act is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody...."

Lord P said that the values inherent in the ECA72 were a commitment by Parliament, unless and until Parliament changed its mind, to include EU law as part of domestic law.

At para 12 of his judgment, Lord Bingham said: "Where constitutional arrangements retain scope for the exercise of political judgment they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude ..."

Lord P said that the phrase "flexible response" could not be bent so that Ministers are able to take away what Parliament has created.

Lord P went on to say that the same point could made by reference to the AXA case.  The case involved looking at the legislative competence of the Scottish Parliament.  At para 46 of his judgment, Lord Hope said: "The carefully chosen language in which these provisions are expressed is not as important as the general message that the words convey. The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. It is nevertheless a body to which decision making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham said in Jackson, para 9, is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament's power to legislate is not unconstrained. It cannot make or unmake any law it wishes ...."

For Lord P, the general message of the ECA72 was clear as to Parliament's commitment to the new source of law. (Transcript pg 187).

Lord P then went on to look at provisions in the ECA72.  The Long Title spoke of "enlargement" and it could not be consistent with that ti say that the size of the EU could be reduced by Ministers acting under the prerogative so as to remove the UK.

Discussion then followed - in particular with Lord Carnwath - as to how helpful it was to look at Parliament's intentions in 1972.  Lord Kerr perhaps summed this section up by saying that the ECA72 provided a starting point and the question was whether there had been any departure from that.  Lord P replied that was so and there had to be clear indication of departure.  [See Transcript pages 188 to 193 for this discussion].

The ECA72 section 1 deals with the treaties to which the Act applies. New Treaties have been added to the list in section 1.  It made no sense to have this requirement but to allow Ministers to notify that the UK was leaving the EU and destroy the whole structure.  Section 1 showed Parliamentary control.  It would be extraordinary if Parliament required control for variation but not for nullification (pg 198-199).  [For the fuller discussion on this - including point regarding "ancillary treaties" - see pages 194 to 199].

ECA72 section 2 was concerned with General Implementation of the Treaties.   The treaties are those included in section 1.  It would conflict with the heading of section 2 if the Minister could remove the UK from the treaties.

Section 2(1) - "from time to time" recognises that rights and duties will change (pg 201) but they will evolve through acts of the EU institutions and section 2(1) simply gives effect to this feature of EU law.  Section 2(1) is not concerned with nullification - the conduit cannot be made redundant - the words from time to time do not mean "membership" from time to time.

The day concluded with discussion with Lord Carnwath as to whether Article 50 required a domestic law legal base.  Lord P said that it had nothing to do with prerogative.  Article 50 was not part of domestic law and did no more the recognise that notice has to be in accordance with domestic constitutional requirements.

The court then adjourned.

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