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 Court  President (Lord Neuberger) -  (noted here)  - Mr Wright opened the case  for 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 do so.” 

This question goes to the “very heart of our constitutional settlement.”

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 process.

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:

1.      The 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 actually do?
     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. 

1.      It was 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.
      Treaties 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 the directive.

Rights and obligations can be removed from EU law by the same processes as adding a new right or obligation. 

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 business.  The Constituutional 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 imposition.”

My note:  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.

Written cases for the government:

Secretary of State for Exiting the European Union

Supplementary: Secretary of State for Exiting the European Union (devolution issues)

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