Thursday 29 December 2016

Brexit litigation in the Supreme Court - Miller and Dos Santos - the government case (2)

This post continues looking at the arguments put forward by the government in its appeal against the High Court's decision in R (Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).  The High Court held 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.  The first post looked at the first 3 of 6 stages in the submissions put forward by Mr James Eadie QC on behalf of the government.

D)  Application -

Legislation -

1.   Mr Eadie began by setting out various Acts of Parliament in this field.  The first was the Constitutional Reform and Governance Act 2010 (CRAG) which imposed a scheme for the ratification of treaties (Transcript Day 1 at pgs 83-86).  CRAG was concerned with Parliamentary involvement in the ratification of treaties and did not deal with transposition of a treaty from the international plane to domestic law.  The Green Paper and the White Paper preceding CRAG were referred to and were in the court papers.  The Explanatory notes to the Act state:

"Part 2 of this Act puts Parliamentary scrutiny of treaty ratification on a statutory footing and gives legal effect to a resolution of the House of Commons or Lords that a treaty should not be ratified. This means that should the House of Commons take the view that the Government should not proceed to ratify a treaty, it can resolve against ratification and thus make it unlawful for the Government to ratify the treaty. The House of Lords will not be able to prevent the Government from ratifying a treaty, but if they resolve against ratification, the Government will have to produce a further explanatory statement explaining its belief that the agreement should be ratified. Part 2 concerns scrutiny of the ratification of agreements entered into by the Government under international law.  It does not change the current position that an Act of Parliament would be required if it were intended to give effect in domestic law to matters embodied in such an agreement." [My underline].

2.   Mr Eadie then turned (at pg 91) to the European Communities Act 1972 (ECA72).  This contained no provisions regulating any future decision to withdraw from the Communities even though withdrawal was seen as a possibility by Parliament at the time and the Act placed no restrictions on the treaty prerogative.  The Long Title to the ECA72 did not state that it was an Act for and in connection with the UK becoming a member of the European Communities (pg 93).  The Act was NOT needed to authorise ratification but it was focused on transposition.  The High Court was wrong to conclude that the government could not have ratified the Treaty of Accession until the ECA72 was enacted (pg 96).  

This section of the hearing contained a considerable amount of discussion between Mr Eadie and the justices - see pages 91 to 111.  Lord Wilson asked (pg 103) - "you have shown very convincingly that our entry into the EU was a joint effort, the exercise of prerogative power by the executive and the exercise of legislative power by Parliament. So, put very simply, one of the arguments that you will have to deal with is, if our accession was the result of joint effort, should our departure not equally be so."  Mr Eadie replied - "My Lord, the submission I make is that the joint effort, as it were, in the 1972 Act is a joint effort in the sense that it assumes that all the prerogative powers continue to exist and be operated. So all that this is doing, this Act, is not to -- put it in the positive: this Act is designed, and that is all that part 1 does, to deal with transposition.  It doesn't authorise, it doesn't purport to be a joint effort in relation to the going in.  It simply assumes and is premised on the continued existence of that power, and withdrawal, therefore, is entirely consistent, to put it in my Lord's helpful way, is entirely consistent with that framework.  Because when you withdraw, you withdraw on that basis. You withdraw in exercising the prerogative powers that sit in parallel to and are the premise for the 1972 Act ..."

The ECA72 section 1 set out the mechanisms by which treaties come to be approved and put on the list (pg 111).  Mr Eadie said that no restriction on the prerogative power to withdraw can be inferred from section 1.

ECA72 section 2 created the CONDUIT and the nature of the conduit was direct and automatic (pg 115).  Rights created on Day 1 could be altered or removed.  The introduction of Art 50, which operates on the international plane, makes rights subject to the possibility of withdrawal (pg 117). 

Was there a significant difference between altering rights and closing off the conduit altogether?  As Lord Mance put it (pg 120) - ".. there is a huge difference between submitting to the rulings of a club committee as to what the club rules are, the dress code or whatever, if you happen to be a member of a club, and not being a member of the club at all ..."   Mr Eadie submitted that this was a question of scale and nothing more.  [Note: Withdrawal is obviously a much greater step than alteration of the content of EU law given that withdrawal may have huge economic and political consequences].

Section 2 recognised rights and obligations created and altered on the international plane.  Rights have effect in domestic law because of both the conduit and prerogative action such that the rights dealt with by section 2 were inherently limited or contingent.  

ECA72 section 3 did not imply or state that rights continue to exists.  The section is concerned with the point that there is an institution to resolve disputes.

3.   The European Parliamentary Elections Act 1978- at pg 136 Mr Eadie said: "This is an important step, we submit, because for the first time, Parliament decides to control an aspect of the treaty prerogative; in other words it decides to control how the Government is able to act on the international plane, and it does so expressly...... section 6 required primary legislation to be passed before any treaty increasing the powers of the European Parliament could be ratified. So that was an express and a specific and limited control of the treaty prerogative."

Parliament decided what element of the treaty prerogative it wanted to limit and it chose the ratification of particular treaties and it made primary legislation the chosen form of control.  "If the treaty prerogative has been excluded, then this limited form of control -- this very specific form of control becomes difficult indeed to explain."

So, for the first time, the Crown was no longer free to exercise the treaty prerogative as it chose. Also, the 1978 Act explained why Parliament came to pass implementing legislation before and not after later treaties were ratified.  Section 6 had meant that Parliament had imposed itself on the process.

4.   European Communities (Amendment) Act 2002 -this replaced section 6 of the 1978 Act with slightly different language. There had been various treaty revisions negotiated with prerogative power and Parliament had not imposed further restrictions on use of the prerogative (pg 138).  [Note: An example is the Single European Act 1987 modifying the Treaty of Rome and aiming to complete the formation of a common market which the earlier treaty had begun.  It abolished national vetoes in a host of areas relating to the single market; increased the legislative powers of the European Parliament and made the first commitment by member states to create a "European Union"].

5.  European Union (Amendment) Act 2008 -incorporated the Lisbon Treaty which contained Article 50.  This Act expanded the circumstances in which primary legislation was required before ratification of amendments to the founding treaties.  Mr Eadie argued that Parliament had made EU rights and obligations subject to exercise of the Article 50 process.  Section 6 of this Act brought in controls over particular decisions but was silent about Article 50.  Here is section 6 as originally enacted.  Mr Eadie noted (pg 145) that a change to freedom of movement rights was possible without primary legislation.

6.  European Union Act 2011 - Parliament imposed the most significant and extensive set of legislative controls of the treaty making prerogative ever seen (Pg 146).  Mr Eadie took the court through various sections and noted the varying controls imposed.  For instance, section 2 requires a treaty replacing the Treaty on European Union to be subject to a referendum and to be approved by an Act of Parliament.  Mr Eadie argued that, unless the Act had imposed a control, the prerogative remained.

There is discussion of the Thoburn case at pages 152 to 156.  Mr Eadie argued that if the ECA72 is to be regarded as constitutional then so should all the later legislation.  This protects the legislation against implied repeal.

7.   European Union (Referendum) Act 2015 - made no express provision for the legal consequences of the referendum outcome.  The significance of the Act lay in what it did not say and it was not legally irrelevant as the High Court had thought.  The Act put to the people the question which the High Court held should also be put to Parliament.  It was improbable that Parliament set up the referendum so as to reserve the decision to itself.  Mr Eadie then referred to the Foreign Secretary's comment at second reading.  There was also reference to the Briefing Paper which said that the referendum would be "advisory."  Mr Eadie said that "advisory" could refer to government or law makers and was "neutral."  In any event, it was submitted, the Paper was not a legitimate aid to interpretation (pg 165).

[Note:  Much of this appears to overlook what seems to have been a general understanding that referendums did not make decisions but informed Parliament.  This was the view of a 2010 report by the House of Lords Constitution Committee and, at the time, it was accepted by the government.  [See - March 2010, the House of Lords Constitution Committee - Referendums in the UK.  The government response to the report was issued in October 2010].

At page 165, Mr Eadie began to make "core points" about the 2015 Act.  It made no provision seeking to control the prerogative and thus nothing to constrain the giving of notice under Article 50 - (pg 166).  Mr Eadie said that the silence was compelling and consistent with the rest of the legislative scheme.  The 2015 Act was specific contemplation by Parliament of withdrawal and so it could not be improper to use the prerogative to give notice.    

Lord Neuberger said - "I think the point, the way it would be put against you, I suspect, is that under the 1972 Act it was not left with the prerogative and no subsequent act was inconsistent with that, because that was the position in 1972 and that is what it remains ..."

The 2015 Act was passed with Parliament acknowledging at the very least the political realities associated with the scale of the decision to leave the EU.  Parliament acknowledged that the vote should decide the question and that Parliament would respect the outcome.

The first day of the hearing ended with summary submissions about the statutory scheme.  The scheme demonstrated Parliamentary sovereignty. The system of controls had refrained from making provision to control the withdrawal from treaties (pg 174).  No provision constrained use of prerogative.  The ECA72 was passed on that basis and so were all the subsequent Acts.  Further, no necessary implication of control could be inferred.

: Day 2 :

Transcript for Day 2 - Morning and afternoon combined (PDF)

The day began by Mr Eadie ensuring that the justices had various materials relating to points raised during Day 1 - (see Say 2 transcript pages 1 to 3).  Also, various questions from the justices arose as the hearing progressed.

Continuing with his submissions on the statutory theme, Mr Eadie said that it was inaccurate to conclude that the ECA72 was passed to introduce EU law into domestic law in such a way that it could not be undone by exercise of prerogative power (pg 3).  There was nothing expressly in the ECA72 to say this and a necessary implication could not be drawn.  The Act was a transposing mechanism and it did not even authorise government to make the UK a member.

Lord Sumption then said that the so-called Great Repeal Bill (pg 7) could not be taken into account.  Mr Eadie said no legal significance was attached to it but there would be further parliamentary involvement.  [Note: How can a court take into account what Parliament MAY do?  Something that was just announced at a Party conference]

The question of scale was raised again (pg 15).  It had been raised by Lord Mance on Day 1.  Mr Eadie said that the ECA72 did not touch upon withdrawal and the later legislation introduced controls but did not do so in relation to withdrawal.  The answer to the scale question is the 2015 Act and the referendum itself.

Mr Eadie then spoke of joint effort which had also been raised on Day 1 - a joint government and parliament effort to join so why not a joint effort to leave.  On any view there will be a joint effort (pg 16) with Parliament further involved .  What would happen on exit would reflect closely what happened on entry.

At page 17, Lord Neuberger touched upon the point that a difference from 1972 was that the Article 50 notice was an irrevocable step.  Irrevocability was assumed by all parties and was not discussed further but Mr Eadie said that there would be real symmetry with what happened in 1972.

At page 18, Lord Mance asked whether the 2015 Act expected Parliament to consider the position in the light of the referendum.  Mr Eadie maintained that the Act put the decision to the people but the timing of the notice required "expert and experienced judgment" (page 19).

Lord Mance asked: " Is it realistic to regard an Article 50 notice as an entirely limited notification, the UK is going to withdraw, because the scheme of Article 50 obviously contemplates that that will lead to, at the very least, a framework agreement as to the future. Is it realistic to suppose that the notice will simply be a notice which gives no clue as to what the nature of the direction intended is, what the nature of the agreement wished for is?  Mr Eadie replied that the notice would not delve into what the possible agreement might look like and it would not indicate how the government might or might not choose to negotiate.  The notice would just comply with Article 50 - "a one line."

Mr Eadie said (pg 21) that if the outcome of negotiations is an agreement then CRAG 2010 may apply to it.  [Note: IF the notice is irrevocable then, at such a point, Parliament would be faced with either accepting the agreement and approving ratification or, alternatively, not approving ratification and thereby, in effect, taking the UK out of the EU without any agreement at all].

Trying to return to his points about the statutory scheme, Mr Eadie said that it took two elements to recognise international law rights in the way set up by the ECA72. These were the general conduit together with creation of rights on the international plane.

Lord Reed now stepped in to say that there were two ways of looking at the 2015 Act - (pg 22).  He asked: "I don't know quite whether you would put it this way, you might not. It occurs to me that a lawyer's way of looking at the 2015 Act might be to ask, does it mean that the result of a referendum gives some -- has some legal consequences for Government. For example it requires them to act on the result of a referendum or, alternatively, does it have a parallel impact on the legal position of Parliament?   Another way of looking at it might be to say that holding a referendum is a political event, that the significance of the outcome depending on things like the size of the turnout, the size and majority one way or another, is inevitably a matter of political judgment, which courts are not equipped to do, and that therefore the outcome of the -- when Parliament passes the 2015 Act, it is setting in train a political process, the outcome of which has to be assessed by the political actors in our constitution? 

Mr Eadie agreed that both were possible ways of looking at the 2015 Act.  He reminded the court that his primary submission was that the 2015 Act was consistent with the scheme of the legislation - that is, that a prerogative right to withdraw had remained in place.  However, he went on to advance an alternative submission that, if the court held that the ECA72 had placed a "clamp" on the prerogative then the "clamp" had been removed by the 2015 Act.  At page 26, Lord Neuberger said that given the silence in the 2015 Act it was possible to say that the matter should be left to Parliament.  Mr Eadie replied that because of the silence there were subtle ways to give the legal punch line.  

Lord Clarke noted that the Act did not have to have been silent and then Lord Neuberger said that the Act could have said that the referendum was advisory or could have specified other consequences.  Lord Neuberger said that Lord Clarke's point was a fair one because if Parliament wanted a legal effect then it says so.  Mr Eadie said that the Alternative Vote referendum legislation had specified the outcome because it was necessary to do so since there was no prerogative power to alter the voting system.  In the 2015 case, nothing needed to be specified to give effect to the referendum (pg 28).  

Lord Mance then asked whether Mr Eadie was suggesting a form of legislation that the courts could not construe.  Mr Eadie replied that the court would be trying to discover the true constitutional nature and effect of the legislation (pg 28).  Lord Mance said that was a way of interpreting it albeit in a constitutional context.    Mr Eadie said that he was not seeking to argue that it was non justiciable (pg 29).  Lord Neuberger said that Mr Eadie was saying that the court could look at the nature of the legislation and take into account not merely what it says but what its effect is.  Mr Eadie responded that all legislation sits within the constitutional framework including the proper functions of the legislature and the courts.  Lord Mance concluded this section by observing that the courts could adjudicate on the question whether the ECA72 had imposed a "clamp" and whether that had been removed by the 2015 Act.

Mr Eadie then moved on to his fourth point on the statutory theme which was that the High Court's conclusion about the statutory scheme would have the most serious implications for the usual and long established exercise by the government of the foreign affairs prerogative.  Lord Mance intervened to put the point that this treats the ECA72 as typical of other types of statute (pg 31). 

At this point, Mr Eadie still had two of his 6 areas remaining - i.e. Parliamentary sovereignty and whether there is a background principle of the kind treated by the High Court as dispositive - i.e that prerogative cannot alter the law of the land.

E) The principle -

Mr Eadie argued that the High Court had effectively turned De Keyser against him.  The foreign affairs prerogative has always been a general power subject only to restrictions such as CRAG 2010.  Mr Eadie then referred to what Lord Oliver had said in J.H. Rayner (Mincing Lane) Ltd v Department of Trade [1990] 2 AC 418.  It is worth setting this out here:

"On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law: see Blackburn v. Attorney-General [1971] 1 W.L.R. 1037. The Sovereign acts  throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts:" Rustomjee v. The Queen (1876) 2 Q.B.D. 69, 74, per Lord Coleridge C.J.

That is the first of the underlying principles. The second is that, as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant."

Mr Eadie therefore submitted that Lord Oliver was not saying that a treaty could never affect domestic law.  Clearly it could do so if Parliament had given effect to that Treaty.  The De Keyser case was referred to (pg 37) and Mr Eadie said that the case proceeded on the basis that there was a power, in certain circumstances, to take property and the question was whether Parliament had imposed a restriction - that is, that compensation had to be paid.

At pg 39 Mr Eadie said that it was clear that exercise of prerogative could have effects in domestic law in variety of ways.  There is then considerable discussion about legislation enacted on the basis that the international position can alter.  The question of looking at what was said and done in Parliament is also discussed (pgs 44-45) and this led on to a point that the court was being asked to compel government to introduce a Bill in Parliament which Parliament itself has not asked for (pg 47). 

At pg 48 Mr Eadie said that it was integral to the scheme of legislation that the government can operate to change the law.  Lord Hughes then asked whether directly applicable rights would lapse when the period referred to in Article 50 expired and Mr Eadie accepted that they would.  This was because they depended on the international legal order and not just the ECA72.   There would be complexities around precisely how it was all going to work (pg 51).  It was noted some matters may have been absorbed into the common law and common law could develop by reference to whatever principles and inspiration it wishes.  It would be necessary to address matters "policy by policy" (pg 54) - e.g. the government will ask what are we to about farming .... etc.

Lord Hodge said that rights can be removed but only by dealing with the EU institutions (pg 56).  Mr Eadie replied that this was so but it was the prerogative by which Ministers acted.

Mr Eadie said that the government did not accept that there is any principle corresponding to that identified by the divisional court, to the effect that the prerogative to make or withdraw from treaties cannot be exercised so as to have the effect of altering domestic law.  There is no authority for that proposition.  None of the cases that [the claimants] cited are authority for that proposition.  All of the authorities that are cited in support of the proposition that the prerogative may not be exercised in a manner which is inconsistent with domestic law, domestic law rights, concern a situation where the exercise of the prerogative conflicts with some separate or pre-existing law.  None of them decide that the government may not withdraw from a treaty where they will impact on domestic law, and there are circumstances where that may be done.

A fifth point was that this is not a wholly unprecedented or aberrant situation.  Mr Eadie referred to the Canadian TURP case which concerned Canada signing up to a protocol to the Kyoto Treaty, then legislating and then withdrawal from the protocol.  

There was then some mention of EFTA (pg 63-64) and "double-taxation" arrangements (pg 66) but Mr Eadie said that, because of time, he would leave double taxation to what was said in the written case. 

At page 66 Mr Eadie moved to identify the tightrope being walked by the claimants.  Their case involved:
  • Arguing that the prerogative to withdraw did not exist in 1972.
  • The dualist structure on which the ECA72 was based was to be ignored
  • The elephant in the room was the 2015 Act and this was also to be ignored.
  • De Keyser was also to be ignored despite its careful approach to alteration of the constitutional balance between the powers of government and control by Parliament 
At pg 68, Mr Eadie said: "What we respectfully submit is that the divisional court did not properly take a long established constitutional principle and apply its inevitable logic;  what they did instead was to take a number of different  and generally expressed principles, and invented a new principle. They took those general principles and, if  you will, pressed them into service as absolutes, and outside the context in which they were deployed, and in the cases for which those general statements of  principle as general statements were sufficient unto the day.  We do submit that the principle that they identified as a background but in truth dispositive constitutional principle as they put it, is not sound and should not have dictated the answer to this case."

F)  Parliamentary Sovereignty -

It was said that the giving of notice was an affront to parliamentary sovereignty.  However, Parliament had indicated those matters on which it required to be involved further.  Parliament is already deeply involved in the whole process of withdrawal and Parliament does not seem to want the obligation put on it by the Divisional Court (pg 71).  Parliament will also be involved in the detail of the legal transformation of withdrawal after the notice is given (pg 71-72).

A point was made by Mr Eadie that the government did not accept that, in the Shindler case, Lord Dyson had contemplated the matter going back to Parliament (pg 69). 

Mr Eadie then made 5 closing submissions:

1. The prerogative is a key part of the constitution as Parliament well knew in 1972 and today.

2.  Parliament has chosen to regulate some parts of prerogative powers but not Article 50.

3.  There is no basis to impose some form of hidden legislative presumption on Parliament's intention.

4.  The respondent's position is a serious constitutional trap leading the court into judicial legislation.  The court is being asked to impose a new control of a most serious kind in a highly controversial, carefully considered, area.

5.  The court would be doing so in circumstances in which the 2015 Act and the fact of the referendum undermine any possible suggestion that the use of that power was objectionable or anything other than entirely consistent with the will of Parliament.

The government's baton then passed to the Advocate General for Scotland to deal with devolution issues - as discussed in the previous post.

NEXT - it now remains to look at the responses against the government's submissions and then the closing submissions.

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