Sunday 18 December 2016

Brexit litigation in the High Court - Overview of the High Court judgment (1)

"It may be there has never been a statute having such profound effects on so many dimensions of our daily lives"  - Lord Justice Laws speaking of the European Communities Act 1972 in Thoburn v Sunderland City Council [2003] QB 151 (DC)

This post and the posts to follow, look at the Brexit litigation before the High Court and in the Supreme Court of the UK.  The High Court judgment is R(Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin) from which the government appealed.   Transcripts of the High Court hearing are at the Courts and Tribunals Judiciary website.  The Court of Appeal (Civil Division) did not participate in this case.   When the appeal was heard in the Supreme Court there were additional elements including, in particular, devolution questions and a reference from the Court of Appeal of Northern Ireland.  

By way of background, it is useful to note here the process which led to the UK’s accession to the Treaties and how the European Communities Act 1972 came about – previous post of 24th August. It is a good example of the UK’s dualist approach to the relationship between Treaties and Domestic Law.

The High Court

The litigants

The action was brought by Mrs Gina Miller and by Mr Deir Tozetti Dos Santos.   Interested Parties were - (a) Mr Grahame Pigney and others and (b) AB, KK, PR and various children.  There was also an Intervention by Mr George Birnie and others.

The legal question

The sole question in the case was whether, as a matter of the constitutional law of the United Kingdom, the Crown - acting through the executive government of the day - was entitled to use its prerogative powers to give notice under Art 50 for the United Kingdom to cease to be a member of the European Union. 

Common ground

From paras 1 to 10, the following common ground between the parties appears:

 (a) withdrawal will have profound consequences in terms of changing domestic law in each of the jurisdictions of the UK; 

(b) it is a justiciable question of law;

 (c) notice under Art 50 cannot be withdrawn one it is given; (d) an Article 50 notice cannot be conditional.  [Note: Legal opinion has varied on this.  To obtain definitive answers would necessitate a reference to the Court of Justice of the EU].  

At para 20 the court said that it was common ground that the most fundamental rule of UK constitutional law is that the Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme.  

Further common ground appered at paras 24 to 29 where the court set out basic principles relating to prerogative power and also at paras.37 to 40 where there is a basic picture of how EU law operates.

What does Art 50 notice do?

The court looked at the effect of the Art 50 notice in paras. 11 to 14 and the subsequent impact the negotiation process and its outcome would have on rights.   

The giving of notice would have no immediate impact on domestic law because the European Communities Act 1972 (ECA72) would remain in place and so would EU rights.  That view overlooks the effect that the notice will eventually have particularly if it is truly the case that notice cannot be either conditional or revocable (as was assumed by all parties to the case). 

As the court noted (para 11) - Once a notice is given, it will inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union ..... and it will also be the case that a withdrawal agreement  may preserve some parts of the relevant Treaties or may make completely new provision for various matters.  That would give the Crown  entitlement to pick and choose which existing EU rights, if any, to preserve (so long as it can persuade the European Council to agree) and which to remove. This is why the court saw the effect of the Article 50 negotiation process on relevant rights as direct. 

The government relied on the negative resolution procedure set out in section 20 of the Constitutional Reform and Governance Act 2010 ("the CRAG 2010") by which a withdrawal agreement may have to be laid before Parliament.    [Note: a point not discussed in the judgment is whether a withdrawal agreement would amount to a new “treaty” for CRAG purposes – see section 25 of CRAG – though it appears to do so].  An important point here is that if Parliament rejected a withdrawal agreement, the two year period in Art 50 would continue to run with the result that the outcome could be complete removal of all rights for the United Kingdom and British citizens under the EU Treaties when the relevant Article 50 time period expires.

Is the challenge by the claimants a challenge to the decision to withdraw or giving of the notice?

Paras. 15 to 17 touch upon the distinction (found in Art 50 itself) between the decision Art 50(1) and the notification Art 50(2).  This distinction appeared to me to be important – see my post of 27th June - where I argued that it was necessary to keep the two separate - i.e. decision first and then notification.  Without a "decision" there is nothing to notify!  

The court decided that nothing really turned on this because it was clear that the two provisions have to be read together and if the Crown did not have power to give a notice under Art 50(2) then it would appear that it could not make a decision to withdraw under Art 50(1).  The court agreed with Lord Pannick QC that whatever the position in relation to any decision under Article 50(1), a decision to give notice under Article 50(2) was the appropriate target for the legal challenge because it is the giving of notice which triggers the effects under Article 50(2) and (3) leading to the exit of a Member State from the European Union and from the relevant Treaties.
Essential (basic) principles

The court set out key points relating to the constitution and the sovereignty of Parliament – paras 18 to 23.  Basic principles relating to the prerogative are at paras. 24 to 29.  

The material here amounts to uncontroversial points that are to be found in all of the textbooks on constitutional law.  It is also to be noted that, at para. 19, the court said that there was no suggestion that such parts of constitutional law in Scotland and Northern Ireland in relation to the interaction between statute and the Crown's prerogative powers as are relevant to determine the outcome in this case are any different from the law of England and Wales on that topic.  [My underline].

Para 30 notes general rule that, in normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers.  Para 31 goes on to explain that it is the Secretary of State’s case that nothing has been done by Parliament in the ECA 1972 or any other statute to remove the prerogative power of the Crown, in the conduct of the international relations of the United Kingdom, to take steps to remove the United Kingdom from the European Union by giving notice under Article 50. [My underline].   Primary legislation would have been required to remove that prerogative right and it could only have been removed by express words or by necessary implication.  This had not been done.

In paras 32 and 33 the court turned to the issue of the effect of Treaties on domestic law.  The UK operates a dualist system – Treaty negotiated by the Crown; any Treaty implementation in domestic law has to be done by Parliament.  As it sometimes expressed – Treaties are not ‘self-executing’. 
At para 31 the court said that the Crown's prerogative power to conduct international relations is regarded as wide and as being outside the purview of the courts precisely because the Crown cannot, in ordinary circumstances, alter domestic law by using such power to make or unmake a treaty.  By making and unmaking treaties the Crown creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law. It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights.   References to a number of cases then follow.

A point glossed over?

Para 33 rather skipped over a point that was to assume greater significance after the judgment in various legal articles and also in the appeal itself.  The court said [end of 33] – “We would add that treaties can have certain indirect interpretive effects in relation to domestic law, such as those discussed in R v Lyons [2002] UKHL 44; [2003] 1 AC 976 at [27]-[28]; but this does not affect the basic position that the Crown cannot through the use of its prerogative powers increase or diminish or dispense with the rights of individuals or companies conferred by common law or statute or change domestic law in any way without the intervention of Parliament.”

Later in the judgment (para 79), the case of  Post Office v Estuary Radio Ltd [1968] QB 740, CA was referred to where, on the proper interpretation of the legislation in question in its particular context, the extent of application of the legislative regime was to be determined by reference to the concept of the United Kingdom's territorial waters, as they happened to be defined from time to time by the Crown by making relevant claims regarding their extent in the conduct of international relations under its prerogative powers.

Therefore, it has to be accepted that the proper use of prerogative power is capable of at least altering the factual circumstances to which legislation has to be applied.   

The relevance of the principles to the question in the case – paras. 34 to 36.

A particular feature of the case was that the legal question for decision arises in a statutory context in which a direct link exists between EU rights on the international and the content of  domestic law. The direct link arose as a result of principles of EU law (e.g. direct applicability) and the terms of the ECA72.  This led the claimants to argue that the ECA72 (and other statutes which provide that EU law has effect in domestic law) leave no room for the Crown to have any prerogative power to give notice under Article 50 to withdraw from the TEU and other relevant Treaties.  At the same time, the same feature led the Secretary of State to contend that the Crown's prerogative power to give notice to withdraw from the Treaties had not been removed by primary legislation. The Secretary of State argued that Parliament must be taken to have recognised that the Crown would have power to give notice under Article 50 in the exercise of its prerogative to conduct international relations and thereby intended that the Crown should have power to bring about the changes in domestic law about which the claimants complain.

The court then summarised the positions of the parties.  The claimants and interested parties contended that the European Communities Act 1972 and other relevant statutes left no room for the Crown to have any prerogative power to give notice under Article 50 to withdraw from the TEU and other relevant Treaties. The giving of notice would offend the principle that the Crown could not alter domestic law by exercise of its prerogative powers and so deprive them of their legal rights under that law – para. 35.  The Secretary of State contended that the the Crown's prerogative power to give notice to withdraw from the TEU and the other treaties has not been removed by primary legislation. – para. 36.

How EU law operates

Paras. 37 to 40 contain an uncontroversial basic picture of how EU law operates and this was common ground.  The court referred to basic features of EU law that were established well before the UK joined in the European Communities (as they then were) in 1973 – cases of Van Gend & Loos ECLI:EU:C:1963:1 and Costa v ENEL [1964] ECR 585.  Note: On the Supremacy of EU law see this article by Portsmouth University.

................... this is continued in Part 2 and in Part 3

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