This post is Part 2 of my overview of the High Court's judgment in R (Miller and Dos Santos) v Secretary of State for Exiting the EU. See also Part 1 and Part 3
The need for the ECA 1972 and its effect on the law of the United
Kingdom
Para. 41 of the judgment begins by stating that, as a
practical matter, by reason of the limits on its prerogative powers ... the
Crown could not have ratified the accession of the United Kingdom to the
European Communities under the Community Treaties unless Parliament had enacted
legislation.
The words
“as a practical matter” are important here.
In 1972, there was no legal requirement for Parliament to be involved in
the ratification of a Treaty. There was
a constitutional convention – known as the Ponsonby Rule – that Treaties subject
to ratification were to be laid before both Houses of Parliament for 21 sitting
days before ratification took place. A
useful explanation of the Rule and the reasons for it may be read in this 2001 report.
Enacting legislation
before ratification avoided the problem that would arise if the government had
committed the UK internationally but Parliament had then refused to enact the
legislation needed to give effect to the Treaty domestically. The European Communities Act 1972 received
Royal Assent on 17th October 1972 and the instrument of ratification was
deposited on 18th October 1972.
The ECA72
was of course required to give effect to EU law in the domestic law of the
jurisdictions in the United Kingdom.
ECA72 as a constitutional statute
The notion of a “constitutional statute” began
with the judgment of Laws LJ in Thoburn v Sunderland
City Council [2003] QB 151 (DC). Such statutes are protected from IMPLIED
repeal and the courts have recognised the ECA72 as such a statute.
The provisions of the ECA72
The court examined the ECA72 at paras. 45 to 54
and noted the LONG TITLE:
"An Act to make provision in connection with
the enlargement of the European Communities to include the United Kingdom,
together with (for certain purposes) the Channel Islands, the Isle of Man and
Gibraltar"
and also the effects of sections 2(1), 2(2), 2(4)
and 3(1). See the legislation
here.
Note: Section 2(1) deals with “All such
rights, powers, liabilities, obligations and restrictions from time to time
created or arising by or under the Treaties ...... as in accordance with the
Treaties are without further enactment to be given legal effect or used in the
United Kingdom .....”
Section 2(1) is clear that it applies to
rights etc arising “from time to time” and this is recognition by Parliament
that the rights available under EU law will vary and that Parliament was content to allow this
to happen through the mechanism of section 2(1). Negotiations between the UK government and
the EU institutions are conducted by Ministers under prerogative powers in
foreign affairs and this is also recognised by Parliament. Nevertheless, it seems to press section 2(1)
rather too far to say that Ministers could therefore simply remove all the
available rights and thereby leave section 2(1) as an empty shell because there
are not rights etc to which it can apply.
The right of withdrawal from the EU - Paras.55 and 56.
During the hearing,
the court raised the question of whether, before Article 50 came into being,
the UK could have withdrawn from the EU.
The general view was that it would have been possible under either (or
both) of two possible methods. The
Attorney general maintained that one method may have been under customary
international law. The claimants argued
that the Vienna Convention on the Law of Treaties Art 59 provided a withdrawal
route.
The court concluded
that this did not have to be resolved.
On either view, withdrawal was possible and so Parliament must be taken
to have had that possibility in mind when enacting the ECA72. Also, on either view, the question of who was
entitled (Parliament or Executive) to commence withdrawal would have still been
there.
Note: Although it is not discussed in the High Court judgment, the government certainly considered in 1975
that withdrawal was possible. On this
see the July 2015 Commons Briefing paper looking
back at the 1975 referendum and also see, for example, the statement by Edward Short MP (Lord President of the Council) during the Second
Reading on the Referendum Bill where Mr Short
simply stated that:
“In law, as the White Paper points out, our continued membership of
the Community can be reversed at any time by an Act of Parliament.”
Mr Short did not discuss the form such an Act might have taken and a
Bill was never brought forward because in the 1975 referendum the people voted
to remain.
On the question of withdrawal in 1975 see also the government pamphlet as presented to
the public prior to that referendum. For
an interesting lecture by Professor Vernon Bogdanor on the
1975 referendum see Gresham College 15th April 2014.
Rights
The parties
presented an account of different categories of rights arising under EU law and
this is addressed at paras. 57 to 61.
The court considered the account to be rather simplified and added that it is important to bear in mind that there are other substantial
areas of EU law such as the schemes of regulation which take effect as part of
the law of the United Kingdom. [Note:
EU law does not categorise rights in this way].
Para. 58-59. Category (i) rights - some rights could be replicated in domestic law if the UK left
the EU – e.g. Working Time Directive – provided that Parliament chose to do
so.
[Note: Although there has been mention of a Great Repeal Bill, no such Bill has been published and there is no clear statement regarding the detail of what it may or may not contain. The idea appears to be to freeze the law on the day the UK leaves and then Parliament can make changes in its own time].
[Note: Although there has been mention of a Great Repeal Bill, no such Bill has been published and there is no clear statement regarding the detail of what it may or may not contain. The idea appears to be to freeze the law on the day the UK leaves and then Parliament can make changes in its own time].
Para. 60 – Category
(ii) rights - those enjoyed by British citizens
and companies in relation to their activities in other Member States, as
provided for by EU law, for example pursuant to rights of free movement of
persons and of capital and rights of freedom of establishment. If a British citizen resides in another
Member State pursuant to EU rights of free movement, EU law requires the
authorities and courts of that Member State to respect and give effect to those
rights. It also prohibits the authorities in the United Kingdom from placing
impediments in the way of the exercise of such rights.
Para. 61 – Category (iii) rights - those which have an
effect in the domestic law of the United Kingdom and which would be lost upon withdrawal
from the European Union and which could not be replicated in domestic
legislation. These include the right to
stand for selection or, later, for election to the European Parliament and the
right to vote in such elections. The
right to seek a reference to the CJEU is another example. The court gave other examples.
The effect of withdrawal of the rights - Paras. 62
to 66.
The claimants contended that Parliament by the ECA 1972 intended to give
effect to each of these categories of right. They did so to emphasise the
extent of the change which would be brought about by withdrawal pursuant to
Article 50, in order to reinforce their argument that the Crown could not
effect such changes by the exercise of its prerogative powers.
The Secretary of State maintained that whatever the extent of the
changes upon withdrawal, Parliament has left the Crown with prerogative power
to give notice under Article 50.
He also argued that the claimants exaggerate the extent and the degree
to which categories (i) to (iii) were created by Parliament by the ECA 1972. The Secretary of State accepted that category
(iii) rights would be lost upon withdrawal.
The court said that the Secretary of State sought to minimise the extent
of loss of category (i) rights and that he disputed that category (ii) rights
were the product of enactment of the ECA 1972.
For Category (i) rights - the court decided that the claimants were
correct in their argument that it was the ECA72 that is the principal
legislation under which these rights are given effect in
domestic law of the United Kingdom. It
was no answer to their case to say that some of them might be preserved under
new primary legislation, yet to be enacted, when withdrawal pursuant to Article
50 takes place. The objection would remain
that the Crown, through exercise of its prerogative powers, would have deprived
domestic law rights created by the ECA 1972 of effect.
For Category (ii)
rights – here the Secretary of State presented what the court referred to as “a
highly formulistic argument” which was “divorced from reality.” The
Secretary of State argued that these were rights created by EU law and not by
the ECA 72. The rights apply to UK
citizens because of the combination of EU law on the international plane and
domestic law. It was therefore
possible, the Secretary argued, for the international element to be terminated
under the prerogative in foreign affairs.
The court preferred the view that Parliament knew and intended that
enactment of the ECA 1972 would provide the foundation for the acquisition by
British citizens of rights under EU law which they could enforce in the courts
of other Member States. We therefore consider that the claimants are correct to
say that withdrawal from the European Union pursuant to Article 50 would undo
the category (ii) rights which Parliament intended to bring into effect, and
did in fact bring into effect, by enacting the ECA 1972. Although these are not
rights enforceable in the national courts of the United Kingdom, they are
nonetheless rights of major importance created by Parliament. Accordingly, the
claimants are entitled to say that it would be surprising if they could be
removed simply through action by the Crown under its prerogative powers.
For Category (iii)
rights, the government accepted that they would be lost on exit from the
EU. This alone was sufficient, in the
court’s view, for the claimant’s argument.
Note: After the High Court judgment, there was a mass of academic opinion
about how the ECA72 actually operated.
It was a “conduit” through which EU rights entered domestic law but it
was not a grantor (or creator) of such rights.
The “conduit” could therefore be closed off by government using the
prerogative purely on the international plane and that would leave the ECA72 as
an empty shell with nothing on which its provisions could bite.
The court then turned
to examine the legislation subsequent to ECA72.
Legislation
At paras 67-72 the court took a brief look at the European Union (Amendment) Act 2008; the European Parliamentary Elections Act 2002, the European Union Act 2011 and the European Union (Referendum) Act 2015. In para 68 the court noted that section 6 of the 2008 Act imposed Parliamentary
control over Ministers in relation to certain decisions to increase the powers
of the EU institutions but it did not provide for any similar control in
relation to a decision to give notice under Art 50.
Note: None of the Acts referred to in
paras. 67 to 72 imposed any requirement(s) with regard to Art 50. The Acts show that Parliament was taking
fuller control over the actions of Ministers in relation to the European
Union. The 2011 Act imposes a detailed scheme
of controls including the requirement, in some instances, to hold a referendum
before a new treaty may be ratified – see, for example, section 2 – (previous post EuropeanUnion: When must a referendum be held).
There is no
mention at this point in the judgment of Part 2 of the Constitutional Reform and Governance Act 2010 (CRAG) which placed the Ponsonby Convention on a statutory basis.
Submissions of the parties – as set out in the
judgment – paras 73 to 76.
The court then set out in some detail the primary submissions of
the claimants and the Secretary of State and these merit a full reading. They are set out in the table at the end of this post.
The nub of the Secretary of State’s argument:
At paras 77 to 81 the court stated that the
Secretary of State’s argument amounted to saying that Parliament has been
content to leave the enjoyment by UK citizens of EU rights in the hands of the
Crown acting on the international plane.
The Secretary of State’s argument went too far – para. 81.
The claimants' primary submissions are as follows:
(1) The question in this
case is to be approached on the basis that it is a fundamental principle of
the UK constitution that the Crown's prerogative powers cannot be used by the
executive government to diminish or abrogate rights under the law of the
United Kingdom (whether conferred by common law or statute), unless
Parliament has given authority to the Crown (expressly in or by necessary
implication from the terms of an Act of Parliament) to diminish or abrogate
such rights.
(2) No words can be found under which Parliament has given any such
authority either expressly or by necessary implication in the ECA 1972 or
subsequent legislation relating to the European Union.
(3) The giving of a notice under Article 50(2) of the TEU would
pre-empt any ability of Parliament to decide on whether statutory rights should
be changed. The notice would automatically abrogate in due course category
(iii) rights and the rights under the 2002 Act; it would remove the category
(i) rights as enacted by Parliament in the ECA 1972; and it would remove from
Parliament decisions on the maintenance of category (ii) rights.
(4) Ratification by Parliament of a withdrawal treaty made pursuant to
Article 50(2) (if any such treaty was agreed between the United Kingdom and
the European Union) would not cure the pre-emption, as the effect of giving
the Article 50(2) notice would in effect inevitably remove the real decision
from Parliament.
(5) Parliament had not given authority by the 2015 Referendum Act for
the Crown to give notice of withdrawal under Article 50.
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The Secretary of State submits as follows:
(1) Parliament could choose to leave (or not to
abrogate) prerogative power in the hands of the Crown, even if its use would
result in a change to common law and statutory rights,
(2) It was clear from ex p. Rees-Mogg
that, unless express words could be found in a statute, Parliament could not
be taken to have abrogated the Crown's prerogative powers in relation to the
EU Treaties so that notice under Article 50(2) could be given with the
consequences that followed in the form of either a withdrawal treaty or
automatic departure. Alternatively, applying the guidance in De Keyser's
Royal Hotel in the context of the EU Treaties, Parliament could not be
taken to have abrogated such prerogative power unless by express words in a
statute (or possibly by necessary implication from a statute).
(3) No words could be found in the ECA 1972 or
any other statute which abrogated that power expressly or by necessary
implication.
(4) In particular, it is notable that neither the
2008 Act nor the EUA 2011 restricted the Crown's prerogative power to give a
notice under Article 50(2), even though that provision had come into
existence by the time they were enacted. On the contrary, both Acts
implicitly recognised that such prerogative power existed as no restriction
was placed on the power of the Crown to invoke that right exercisable under
the TEU, as amended by the Lisbon Treaty.
(5) Nor were there any express words in any
United Kingdom legislation that abrogated the Crown's prerogative power to
withdraw from the Treaties as distinct from amending them. That was because
the intention of Parliament, in particular as appears from the EUA 2011, was
directed at restricting the increase in the powers of the European Union and
its encroachment on Parliamentary sovereignty, not at restricting the ability
to withdraw from the European Union and thereby restoring Parliamentary
sovereignty.
(6) As it is likely that any withdrawal treaty
would contain a provision requiring ratification, the withdrawal treaty would
in any event have to be approved by Parliament by way of the negative
resolution procedure in the CRAG 2010 before that occurred; if it contained
provisions requiring application in domestic law, primary legislation would
also need to be introduced to allow that. This would be consistent with the
proper sequencing of the respective functions of the Crown and of Parliament,
as had invariably happened in the past: once an EU treaty had been made,
domestic law was brought into line by Parliament through legislation and then
the treaty was ratified.
(7) Although the 2015 Referendum Act does not
itself confer statutory power on the Secretary of State to give notice under
Article 50(2), the implication from the fact that the 2015 Referendum Act is
silent on the issue whether legislation is required before notice could be
given under that Article supported the contention that Parliament accepted
the continued existence of the prerogative powers of the Crown to give such
notice; it certainly contains no restriction on such prerogative power as may
still exist.
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