"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(c) notice under Art 50 cannot be withdrawn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 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.
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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