Tuesday 3 January 2017

Brexit litigation in the Supreme Court - the case for Miller, Dos Santos and others (3)

The government appealed 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).

The government's case as put to the Supreme Court was considered in two posts - here and here.  Arguments for Gina Miller were put by Lord Pannick QC on Day 2 - (see here) and in the morning of Day 3 - (see here).

This post looks at the submissions on Day 3 by Mr Dominic Chambers QC for Mr Dos Santos.  Submissions on Day 4 will be the subject of the next post.  Those submissions were  - Helen Mountfield QC for interested parties Graham Pigney and others; Manjit Gill QC 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

Transcript Day 3 - Morning and afternoon combined - 4 page version (PDF)

Dominic Chambers QC for Mr Dos Santos -

Transcript Day 3 pages 53 to 111 - - Morning and afternoon combined - 4 page version (PDF)

Mr C adopted the submissions by Lord Pannick and invited the court to approach the case from first principles as based on the fundamental principle of parliamentary sovereignty.  He put a three stage argument:

Stage 1 - no person or body apart from Parliament itself can override, nullify, or set aside legislation enacted by Parliament - (or the operation or effect of legislation).

Stage 2 - The appellant conceded that triggering Art 50 will cause EU law rights to be lost.  These rights are in primary legislation - notably the ECA72 and the European Parliamentary Elections Act 2002.

Stage 3 - there is no parliamentary authorisation for the executive to override or nullify the legislation such as ECA72.

Stage 1 - Parliamentary sovereignty

Parliamentary sovereignty was forged on the battle fields of the English civil war - the clash between
Marston Moor - 2nd July 1644
the Crown and Parliament for supremacy.  The Bill of Rights 1688 made it clear that Parliament was supreme (pg 55).  Mr Chambers then looked at Dicey (8th Ed, 1915) from where the following propositions could be found:

  • Parliament actually meant The Queen/King together with the Houses of Parliament - Lords and Commons.
  • Parliament - as so defined - could make or unmake any law whatsoever and not other person or body could set aside such law
  • An Act cannot be pronounced as void due to being opposed to the constitution on any ground whatsoever
  • The sole right of electors under the constitution is to elect Members of Parliament.  Electors do not have the means of initiating, sanctioning, or repealing legislation.  No court will consider argument that legislation is invalid as being opposed to the opinion of the electorate.  Opinion of electors is expressed through Parliament and Parliament alone.  That the electorate can assert itself is a political fact but courts do not take notice of the "will of electors" - "the judges know nothing about any will of the people, except in so far as that will is expressed by Act of Parliament. (pg 62).
  • The legal sovereign power is Parliament.  At pg 63 - Mr C said - "Now, the appellant says that he does not dispute what he terms the general principle of the doctrine of parliamentary sovereignty, and he goes on to say that nevertheless it is the case that the executive can by the use of the prerogative alter the law of the land, including that set out in statute.  Now, from a parliamentary sovereignty purpose, that striking proposition is, we submit, simply wrong. The doctrine of parliamentary sovereignty is not a general principle, it is the fundamental legal doctrine upon which our constitution stands.  As we have explained in our written case, and as the courts of the highest authority have said over the centuries, the doctrine of parliamentary sovereignty conditions and refines and defines other relevant concepts. Most importantly in this context, the issue and the extent and use of the prerogative."

The UK's dualist approach to international treaties is a product of sovereignty. At pg 64, Mr C said - "The UK's dualist approach exists precisely because the executive cannot alter domestic law by the

use of the foreign affairs prerogative and the use of the prerogative of withdrawal. There has to be authorisation by Parliament."  [In support of this, Mr C cited the J H Rayner case and Higgs].

Parliamentary sovereignty has been established and operated for over 300 years.  It does not present a challenge to how government acts on the international plane and it will not require in the future any micromanagement of what the government does on the international plane (pg 64).  Parliamentary sovereignty does not impact on the power of government to act on the international plane to do that which is authorised by Parliament - e.g. Ministers engaging in EU decision making.  The doctrine does not affect the use of prerogative in the myriad of examples given by the appellant - e.g. Post Office v Estuary Radio.  [Note: One of the "myriad" must be "double taxation" to which the court returned later].

Stage 2 - the government's concession -

The description of rights being conferred by the EU is inaccurate (pg 65).  For the purposes of parliamentary sovereignty the source of the rights is crucial.  It is the legislation - enacted by Parliament - which is the true source for domestic law purposes.

Lord Carnwath referred (pages 66-67) to the case of Youssef which involved the Secretary of State placing Y on a list.  This listing had effect domestically because of EU Regulation operating via ECA72 section 2(1).  For Mr Chambers, the rights are not merely transposed by a conduit (the ECA) but Parliament had changed the legal order when it enacted the ECA72.

Mr Chambers then took the court through the background to the ECA72.  In a nutshell, Parliament consented in principle on 28th October 1971 to the UK joining the EEC.  The resolution stated -

"This House approves Her Majesty's Government's decision in principle to join the European Communities on the basis of the arrangements which have been negotiated."

  If that resolution had not been passed, the government of the day would not have proceeded.  In the event, the accession treaty was signed on 22nd January 1972 and the ECA72 received royal assent on 17th October 1972.  The UK ratified the treaty on 18th October 1972.

Lord Neuberger asked whether, as a matter of law, the government could have decided not to ratify - see pages 72 - 73.  Mr C said that it would have been an abuse of power not to have ratified.

The court was then taken to Lord Templeman's writing - "Treaty making and the British Parliament - Europe" - (Chicago Kent Law Review).  See transcript pages 73-77. 

Mr C then referred to the Green and White Papers leading to the Constitutional Reform and Governance Act 2010 - pg 78.

The history demonstrated the interaction of parliamentary sovereignty and the dualist approach to treaties.  If the treaties could not have had effect in domestic law without the ECA72 then the effect of those treaties can only be removed by Parliament (pg 80).   "The key point about the dualist system from a parliamentary sovereignty perspective is that, when the UK enters into a treaty which requires domestic implementation, Parliament remains in control of the process. It remains in control if the necessary enabling legislation is passed or not. Parliament has a free choice. If Parliament refuses to pass the legislation, the treaty is not ratified. Now the corollary of Parliament having that control is that parliamentary control must equally apply to the withdrawal process. It is for Parliament to choose whether it will repeal the legislation which implemented the treaty in domestic law. For that reason, Parliament remains in effective control, whether the UK withdraws from the treaty or not."

Triggering Art 50 by government alone would bypass parliamentary control and remove from parliament any substantive choice as to whether or not to repeal the ECA72.  [Note: Key word in that submission seems to be "substantive"].

Another reason for the history (pg 82) is that it shows the fallacy in the appellant's submission that the EU law rights enshrined in the ECA72 are somehow not domestic statutory rights.  EU law rights have to be put into domestic law and only parliament can do that.  Referred here to case Thoburn and McWhirter.

The position was also clear from the European Union Act 2011 section 18.  Mr C referred to the explanatory notes to the Act.  Section 18 said that EU rights take effect domestically solely because of Parliament.  [Note: Although there has been debate about section 18, this seems to be a reasonable statement as to what Parliament was asserting by the section].

The appellant's arguments based on ECA72 section 2(1) using the words from time to time were dealt with in the printed case at para 38 - (Page 31 here). 

Lawyers for Britain had said that from the 2008 Act onwards, the rights given by EC72 section 2(1) had to be read as rights subject to the operation of Art 50.  Mr C referred here to the House of Lords Constitution Committee having written to the Foreign Secretary to ask him to set out the government's view of how the Lisbon Treaty would affect the UK constitution.  The Committee's report said - "We conclude that the Lisbon treaty would make no alteration to the current relationship between the principles of primacy of European Union law and parliamentary sovereignty. The  introduction of a provision explicitly confirming member states' rights to withdraw from the EU underlines the point that the United Kingdom only remains bound by European Union law as long as Parliament chooses to remain in the Union." 

Mr C submitted that this explained at a general level why there was no need for any parliamentary
control (of Article 50), under section 6 of the 2008 Act. Because Parliament was proceeding on the basis that under the doctrine of parliamentary sovereignty, it was for Parliament to decide whether or not to remain in the EU."

Mr C said that once it is understood that the source of the relevant rights in domestic law is primary legislation passed by Parliament, then the legal effect of the appellant's concession in paragraph 62A of his case can be properly understood, because what it amounts to is that rights granted by Parliament under primary legislation will undoubtedly and inevitably be lost or removed by notification under Art 50.  Not just EU law rights, but rights granted under acts of Parliament.

The appellant was asking the court to look at matters from the wrong end of the telescope (pg 91). 
The appellant said - see whether there is prerogative and, if there is, the issue is whether or not it has been limited.  This turns parliamentary sovereignty on its head.  The correct approach is to show that Parliament has authorised the loss of rights in question (pg 92).  It was for the executive to show in clear terms that Parliament has authorised the loss of statutory rights intended to be brought about by executive action.

Stage 3 - Authorisation -

There is nothing in the 2015 Act to authorise the government to act.  Parliament passed the Act knowing full well that in our system of representative democracy, referendums are not legally binding.  This was the position in 1975 and Mr C referred the court to the 1975 legislation which was materially identical to 2015.

In support of referendums not being binding, Mr C referred to Vernon Bogdanor's "The new British constitution" - 2009 where it was said that - 

"In countries with codified constitutions, the outcome of a referendum generally binds both Parliament and Government. In Britain, however, with an uncodified constitution, the position is much less clear. Although neither Parliament nor Government can be legally bound, the Government could agree in advance that it would respect the result, while a clear majority on a reasonably high turnout would leave Parliament with little option in practice other than to endorse a decision of the people. Shortly before the European Community referendum in 1975, Edward Short, then leader of the House of Commons insisted to the House that 'this referendum was wholly consistent with parliamentary sovereignty. The Government will be bound by its result but Parliament of course cannot be bound'. He then added 'although one would not expect honourable members to go against the wishes of the people, they remain free to do so' ...."

This was accurate only if Mr Short had meant morally bound.  Parliament itself could not be legally bound (pg 96-97).

Mr C then referred to the House of Lords Constitution Committee report in 2010 on referendums and also on the House of Commons Briefing Paper made available to MPs.

Note: The legal nature of referendums is considered in my post on Constitutional Ramblings.  The High Court’s view is entirely supportable by the various reports that have been issued by Parliament itself.  The Briefing Paper referred to be the court appears to be Paper 07212 (3rd June 2015) authored by Elise Uberoi.  The Briefing Paper was referred to by Mr Dominic Chambers QC in the appeal – Transcript Day 3 at page 100.

Mr C argued that it followed that "advisory" meant not legally binding (pg 101) - the referendum had no legal effect.

With regard to reliance on the fact that the Alternative Vote legislation did mandate what the Secretary of State was required to do, Lord Carnwath said that the AV legislation was not an exact parallel because there was not prerogative involved.  Mr C replied that it is a question of looking at where power lies.

Lord Clarke wished to know whether a motion (or resolution) in Parliament would give ministers the authority they needed.  This went back to a question put by Lord Reed about whether the court should be telling Parliament what to do.  Could the court insist on there being a Bill?  Lord Carnwath asked whether, at the trigger stage, a resolution would suffice.  Mr C replied that it would not suffice because one is looking at primary legislation and added that the court is the guardian of parliamentary sovereignty (pg 104).  The answer to this was perhaps best put by Lord Kerr (pg 105) who noted that it was for the court to decide whether the ECA72 can be set at nought by prerogative.  Once the court answered the question it would be for parliament and ministers to decide what to do.  The court was not issuing an edict to Parliament.

Lord Sumption also noted that resolutions do not change the law (pg 107).  They are political acts whereas legislation directly affects the law.

Lord Reed commented that life has moved on since Dicey.  The referendum had given the political institutions an instruction and the law had to work out how to implement the instruction (pg 108).  Mr C said that the court's task was to decide whether the instruction is binding or not and it was not binding because the 2015 Act was clear on that point.  [Note: This appears to have meant that the clarity arose because of the silence of the 2015 Act.

Discussion then followed about the admissibility of materials such as the House of Commons Briefing Note and Lord Mance said that there was an issue as to whether it was accurate (pg 109).  Lord Neuberger said it was a statement of what someone thought and MPs may not have agreed with it.  Mr C said that his only point was that the paper was what Parliament had been told.

Lord Neuberger said to Mr C that - Your point is that it would have been easy for legislation to provide for what its effect was.  Parliament had not told us and so it is for courts to try and guess what the legislation intended.
Mr C's submissions ended with a point about political sovereignty and legal sovereignty.  At pg 110, Mr C said: "If I may put it this way, political sovereignty and legal sovereignty, because obviously it is important that the people do not feel in our constitution that they have no power. Of course they have power; as Dicey said, their power is a political power to elect members of parliament and it is members of Parliament who, under our constitution, make the law. So the people are not powerless, they always have the right to get rid of their members of Parliament if they want to."

Conscious of his allocated time running out Mr C concluded by saying - "So my Lords, conscious of the time, our submission, my stage three, is that there is no parliamentary authorisation for this loss of rights, whether it is under the 2015 Act, or any other legislation which has been passed by Parliament, and in the absence of that authorisation, in our submission, the appeal should be dismissed because each of my stages one, two and three lead to that conclusion."

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