Wednesday, 28 December 2016

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



The Attorney General (Mr Jeremy Wright QC) opened the government's appeal and his submissions are considered in this post of 6th December.  The majority of the government's appeal in Miller and Dos Santos was presented by Mr James Eadie QC (First Treasury Counsel or "Treasury Devil" as the post is quaintly referred to in legal circles).  In that role, he makes frequent appearances before the Supreme Court.

Mr Eadie began be setting out the structure of his submissions:

A) Three submissions on the nature of the prerogative
B) Principles of dualism and the impact of the prerogative on to domestic legal rights and obligations
C) Cases on the De Keyser principles
D) Application to the concepts before the court
E) Whether there is a background principle of the kind treated by the High Court as dispositive - i.e that prerogative cannot alter the law of the land.
F) Parliamentary sovereignty


There was then a remark about a horse called Serenade the Stars racing at Lingfield on 5th December.  In the event it came seventh.

A] Prerogative -

1. Prerogative power is an essential and fundamental component or pillar of the modern British constitution - e.g. powers relating to war and peace; conduct of international relations (including treaties).  Other common law jurisdictions have a similar system - e.g. Australia, Canada, New Zealand.  Mr Eadie referred (Day 1 pg 19) to an article by Professor Endicott (Oxford University). It is not absolutely clear from the transcript which article was being referred to but I think it the one dated 1st December 2016 - Parliament and the Prerogative: from the Case of Proclamations to Miller). This first principle was enhanced by the fact that the powers are ancient - i.e. long standing and well recognised.  Mr Eadie referred to the phrase "relic of a bygone age" used in Burmah Oil and argued that the powers were not anachronistic and the proper starting point should not be suspicion of the powers but recognition that they are essential to effective government.

2.  The prerogative powers are by definition those which may be exercised without statutory authority.  Any statutory intervention involves imposing limits or abrogating or removing powers (pg 24).  Mr Eadie gave the example of the Constitutional Reform and Governance Act 2010.

3.  Parliament is sovereign and can choose to limit or control prerogative powers in any way it wishes and it can remove powers.  Prerogative is that part of sovereignty that Parliament has chosen to leave in the government's hands - Burmah Oil case , Lord Reid.  It was important to note what Parliament has not done (pg 26) and legislative intervention is not necessary to leave a prerogative power in place to be exercised in the usual way without further authorisation.

Some discussion with Lord Carnwath then followed about the extent to which prerogative power was reviewable by the courts.  Mr Eadie agreed that it was appropriate for the court to deal with a fundamental question such as whether a power exists or has been abrogated.

B)  Dualism - 

Mr Eadie said (Page 29) that he had 5 basic points regarding dualism and the impact of the prerogative on domestic legal rights and obligations.

1.   Prerogative powers may be exercised to create international legal effects on the international plane.  Lord Templeman in J.H. Rayner (Mincing Lane) Ltd v Department of Trade [1990] 2 AC 418,  said:  "The government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty."

2.   UK operates a dualist system and so treaties do not automatically become part of the law. Parliament has to be involved for domestic law to be altered (pg 33).  Mr Eadie cited at this point Trevor Thomas Roberts and others v Minister of Foreign Affairs and others [2007] UKPC 56.

3.   Consistently with dualism, legislation then creates a "conduit" between international law and domestic law.  [Note: Here Mr Eadie was beginning to introduce the "conduit" view of how the European Communities Act 1972 operates.  (Prior to this appeal, the term "conduit" had not, so far as I am aware, been used a description of how treaties may operate).  Giving effect in domestic law to a treaty did not mean that Parliament also intended to constrain future government action on the international plane.  Various legislative methods have been employed  to transpose from the international plane to domestic law - see pages 36 to 39.

4.   Dualism did not prevent prerogative acts on the international plane having effects in domestic law including removal of rights and imposing obligations - e.g. Post Office v Estuary Radio.  Parliament could create a model of transposition such that rights are "ambulatory" or "alter and shift" (pg 41).  (Lord Clarke intervened here to ask whether it was a question of construction of the legislation).

5.   Under an ambulatory model of transposition, rights can be inherently limited and have no existence independently of the international legal position from which they derive.   [Note: Mr Eadie referred to an article by Lord Millett - a former Lord of Appeal in Ordinary].  Rights can depend on governmental action internationally and also on other sovereign actors.  Pages 42 to 45.

An article written by Lord Millett (supportive of the government's position) was referred to.  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).

C)  De Keyser principles -


1.   Parliament can EXPRESSLY limit, control or remove prerogative power.

2.   Whether Parliament has done whether it has done so outside that express sphere and therefore in other circumstances is a question of statutory interpretation.

3.   The starting point is to expect from Parliament, and for the courts to require, real clarity before prerogative powers are removed (pg 47).  It was no small thing to alter the constitutional balance, particularly one that has existed for many years, by abrogating or limiting long-standing powers. All the more so where they are, as the foreign relations powers are, fundamental and essential to effective Government.   

Lord Sumption commented that most cases in which statutes have been held to limit the prerogative were cases where Parliament did so implicitly because a statutory scheme had at least partly occupied the field.   Eadie agreed and said that there were cases, such as ex parte Rees-Mogg, where the court was faced with the concept of necessary implication and reasoned that: (a) Parliament has expressly intervened to impose control on exercise of the prerogative and so (b) it can be expected that further controls would also be imposed expressly.  That was, Mr Eadie said, the correct reading of Lord Justice Lloyd's judgment in Rees-Mogg.   Mr Eadie then said that Lord Sumption was right to say that in the majority of cases where the issue is controversial, the question has been whether Parliament has, by occupying the field to whatever degree, created the necessary implication.

At page 50, Mr Eadie offered a second reason for requiring clarity - that clarity was required as to the method  by which any control was imposed.

4.   It was necessary to also look at what Parliament had not done.   A limited, carefully considered scheme of limits and control implied that matters falling outside such limits and controls remained untouched.

5.  If there is no express control, the test developed by the courts was that of NECESSARY IMPLICATION (pg 51) which imports the "stringency of logical imperative, rather than mere reasonableness."  Mr Eadie the referred to the test stated by Lord Hobhouse in the Morgan Grenfell case. [See the case at para 45].

6.  Whether or not prerogative exists is to be judged according to the legislation at the time (pg 52).

Mr Eadie stated (pg 53) that those 6 points were the conventional approach and this would be reversed if it was necessary to point to express powers and legislation permitting interference with rights.

Lord Kerr (pg 54) raised a point about whether prerogative powers can revive.     Mr Eadie said that it could do so.  It had been wrong for the Divisional Court to treat as legally irrelevant the legislation after the European Communities Act 1972.

At page 55, Mr Eadie turned to the cases: Attorney-General v. De Keyser's Royal Hotel [1920] AC 508;   Laker Airways v Department of Trade [1976] EWCA Civ 10;    R v Homes Secretary ex parte Fire Brigades Union [1995] UKHL 3,   ex parte Rees-Mogg [1993] EWHC Admin 4;   R v Secretaryof State for the Home Department, ex parte Northumbria Police Authority [1989] 1 QB 26 (CA) and a case referred to as ex H which was on-going at the time in the High Court.

The discussion in court of those cases is from page 55 to 81 - please read in full.  The following is the briefest of summaries.

De Keyser - Mr Eadie said that the case could be summarised as deciding that where statute directly regulates, the source of the authority becomes statutory, it ceases to be the prerogative, and then is subject to such controls as Parliament has specified, but it is the direct regulation of the very thing which creates the necessary implication of legislative abrogation or control. So it requires, as essential to this approach, a precise identification of the Government activity, and then asks the question: has that very activity been subject to new statutory conditions, governing its exercise so as to lead to that implication.  The precise activity in question before the Supreme Court was withdrawal from the treaties on the international plane or, more directly, the giving of Article 50 notice.

Mr Eadie directed the justices to various passages in the speeches of Lords Dunedin, Atkinson, Moulton, Sumner and Parmoor.  This prompted Lord Wilson to comment that there were "endless concurring speeches."  (Unlikely to be the modern practice).

Laker Airways -
This is discussed at pages 63 to 67.  Mr Eadie said that it was a statement of the De Keyser principles (judgment of Roskill LJ) and an application of them.

Fire Brigades Union

Discussed at 67 to 70.  Mr Eadie said that, because the statutory compensation scheme was not in force, the court had applied De Keyser principles by analogy.  The ultimate test was whether there was a necessary implication that prerogative could not apply.

Ex Parte Rees-Mogg -

Pages 70 to 77.  The case was about the Maastricht Treaty and whether or not there was power to sign up to various protocols.  Parliament had enacted the European Parliamentary Elections Act 1978 and section 6 required an Act of Parliament to be passed before any new treaty increasing the powers of the European Parliament could be ratified.

Section 6 of the 1978 Act provides
"(1) No treaty which provides for any increase in the powers of the European Parliament shall be ratified by the United Kingdom unless it has been approved by an Act of Parliament.
Mr Eadie, at pg 70 and 71,  drew the court's attention to a paragraph in the Rees-Mogg judgment where the court rejected an argument put forward by Lord Pannick.   Lord Justice Lloyd said:


"We find ourselves unable to accept this far reaching argument. When Parliament wishes to fetter the Crown's treaty making power in relation to Community law, it does so in express terms, such as one finds in section 6 the 1978 Act. Indeed, as was pointed out, if the Crown's treaty making power were impliedly excluded by section 2(1) of the 1972 Act, section 6 of the 1978 Act would not have been necessary. There is in any event insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown's prerogative to alter or add to the Treaty of Rome."

Mr Eadie reasoned that because Parliament had already imposed controls, there was an inference that if it is going to do so again, it will do so expressly because it will be altering the nuanced scheme that it has already designed (pg 73).

This section of the hearing included a discussion between Lord Sumption and Mr Eadie (pg 71 to 77) which was perhaps summed up by Lord Carnwath (pg 76) who referred to the "fundamental distinction" between the sides.   "Do you start from the proposition that there is a well-recognised power to make and unmake treaties, and the only questions are, is it subject to any statutory restriction, express or implied, or subject to some common law principle such as abuse of power. Alternatively, as [Lord Sumption] puts to you, you ask: is there actually such a power at all if it has the effects on domestic rights?"

Following the "debate" about the Rees-Mogg case, there was brief mention of the Northumbria Police Authority case and ex H.  The court then adjourned for lunch.

Following the adjournment, Mr Eadie submitted that the De Keyser principle required real clarity before a court could conclude that powers had been removed.  This was similar to the principle of legality requiring clarity for removal of rights.  In deciding that, the court had to look at the legislative scheme as a whole.

NEXT - The next post will begin with Mr Eadie's fourth area - Application of the principles to the concepts before the court.

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