Saturday 7 January 2017

Brexit litigation in the Supreme Court - Government responses on the final day

This is the final post looking at the government's appeal to the Supreme Court in the "Brexit litigation".  The appeal is against the decision of the High Court that the Secretary of State does not have the power under the Crown's prerogative to give notice pursuant to Article 50 of the Treaty on European Union (TEU) for the United Kingdom - R(Miller and Dos Santos) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin).   Day 4 of the hearing concluded with responses by the Advocate General for Scotland and by Mr James Eadie QC for the government.

Transcript Day 4 - Morning and afternoon combined - 4 page version (PDF)

Advocate General for Scotland - (AGS) - Transcript Day 4 at pages 130 to 147.

The AGS said that he wished to address one or two issues regarding the devolution legislation (pg 130).  

The government was fully and firmly committed to the Belfast Agreement and the institutions thereby established.  Triggering Art 50 will not undermine that.  
Ben Nevis

Mr Scoffield made quite a lot of the North South Ministerial Council and implementation bodies including the special EU programmes body.  AGS then referred to a "short note" responding to Mr Scoffield.  The note was by Dr McGleenan and Pat McLaughlin of the Northern Ireland Bar.  The bodies, and in particular the EU special programmes body, do not rely on the terms of the Northern Ireland Act 1998.   Lord Neuberger said that the court would read the note.

At pg 132, the AGS said that ALL of the devolved legislation assumes membership of the EU but does not require it. 

AGS the turned to look at points made by Mr Richard Gordon for the Counsel General for Wales.  Whether the government is or is not correct about the ECA72 it is not necessary to go to the devolution legislation (pg 132).  

At pages 133 to 134, the AGS referred to Mr Gordon's suggestion that it was improper for the prerogative to be employed in circumstances "where it would elide the application of the Sewel convention with regard to legislation that impacted upon the devolved institutions and the devolved areas of the UK."  The prerogative was used in the making of EU regulations and such regulations applied in all parts of the UK.  He then referred to Scotland Act 1998 section 57 allowing Ministers to make regulations under the ECA72 section 2(2).  

AGS then turned to the Sewel Convention itself (pg 134).  The "dialogue" which takes place between the various administrations was not part of the convention (pg 135).  There is no such things as a "legislative consent convention" (pg 136).  The Lord Advocate was subsuming within that notion matters that are dealt with, for example, by the memorandum of understandings between the governments and those matters dealt with in Devolution Guidance Notes - (DGN 10 for Scotland, DGN 17 for Wales and DGN 8 for Northern Ireland).  Attempts during the passage of the Scotland Act 2016 to bring such matters within the convention had been rejected in Parliament (pg 137).

Legislative consent memoranda and legislative consent motions were matters within the standing orders of the devolved administrations. They had nothing to do with Parliament at Westminster.

The Lord Advocate was incorrect to bring within the ambit of the convention "a great deal of procedural detail and practice that is actually contained within the DGN ..." (pg 138).

Scotland Act 1998 section 28(8) referred back to the statement made in Parliament by Lord Sewel and which was repeated in the Smith Commission Report and incorporated into section 28(8). 

With regard to Wales and Northern Ireland, the convention is not expressed in statute.  

The AGS then referred to the court to the Madzimbamuto case which had been referred to in his original submissions - (Transcript 6th December at pg101).  and the observations of Lord Reid with regard to the relevance and application of such a convention.  [Note: The Transcript refers to Lord Reed but the judgment referred to was that of Lord Reid - Lord of Appeal in Ordinary from 1948 to 1975 ].

Just because the Sewel Convention had found statutory expression did not mean that it was a justiciable matter (pg 140).  It is a self-denying ordinance on the part of parliament.  Section 28(8) followed section 28(7) which reiterated the absolute sovereignty of parliament.  This was followed by "it is recognised that" and this meant recognised by Parliament.  This was not consistent with a justiciable matter.  [Note: Scotland Act 1998 section 28]. 

Further, there is no possible [legal] remedy if Parliament does not adhere to Sewel (pg 142).  It is therefore impossible to see the convention as a constitutional requirement for the purposes of Article 50.

Lord Carnwath expressed the view that the convention related to legislating at Westminster in respect of devolved matters.  Withdrawal from the EU is not a devolved matter however many effects it has on devolved matters (pg 143).  The AGS agreed.  Some further discussion of the convention follows at pages 144 to 147. 

As a final point, at page 147 the AGS said that it was not necessary for the court to answer the second devolution issue  from Northern Ireland.  The court may be entitled to hold that what the Lord Advocate called the legislative consent convention is not a constitutional requirement in terms of Article 50.

The Robinson case and the question of "flexibility"

Slieve Donard
Before looking at the submission by Mr Eadie it may be useful to look briefly at Robinson v Secretary of State for Northern Ireland [2002] UKHL 32. The question was whether the 2001 election of the First Minister and Deputy First Minister was lawful if elected later than 6 weeks after the Assembly first met.  Lord Bingham noted the background to the Northern Ireland Act 1998 and described it as a "constitution" for Northern Ireland and added that its provisions should be interpreted generously and purposively "bearing in mind the values which the constitutional provisions are intended to embody."  One such value was the need to continue government and avoid a vacuum.    At para 12, Lord Bingham said: 

"   It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain. There are of course certain fixed rules, such as those governing the maximum duration of parliaments or the period for which the House of Lords may delay the passage of legislation. But matters of potentially great importance are left to the judgment either of political leaders (whether and when to seek a dissolution, for instance) or, even if to a diminished extent, of the crown (whether to grant a dissolution). Where constitutional arrangements retain scope for the exercise of political judgment they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude."

The Act did not specifically prevent a late election and Lord Bingham was able to hold that the Act should be interpreted as permitting it so that the elections were lawful.

Lord Hoffmann said (paras 29 and 30):

"A new election is however not something to be lightly undertaken, as some Prime Ministers who have called premature elections have discovered to their cost. So, in choosing between the two constructions of section 16 which have been put forward, I think it is reasonable to ask which result is more consistent with a desire to implement the Belfast Agreement: a situation in which an immediate election becomes mandatory as soon as the six week period has passed or one in which the Secretary of State retains a discretion, for the exercise of which he is politically answerable, to take advantage of developments in the Assembly which enable a First and Deputy First Minister to be elected and to carry on the government of Northern Ireland.

In my opinion the rigidity of the first alternative is contrary to the Agreement's most fundamental purpose, namely to create the most favourable constitutional environment for cross-community government. This must have been foreseen as requiring the flexibility which could allow scope for political judgment in dealing with the deadlocks and crises which were bound to occur."

Hence, the Northern Ireland Act was interpreted in a way that gave some flexibility to the "powers that be" to keep government in place bearing in mind that the Act had been enacted as part of the process of bringing to an end the long and difficult period which Northern Ireland had endured.

Mr James Eadie QC for the government - Transcript pages 148 to 205. 

Transcript Day 4 - Morning and afternoon combined - 4 page version (PDF)

The government was not claiming power to repeal or amend or in any other way to alter Acts of
Parliament.  No power to alter the law of the land was being claimed.  However, a power to notify (under Art 50) was being claimed notwithstanding that it will result in changes to domestic law (pg 149).

It was plain that Parliament can intervene (using the word used by Lord Oliver in J H Rayner).  [Note: Lord Oliver said - " .... 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."].

Parliament could intervene expressly but under our constitution there are other organs of State sharing the responsibility of government.  That is why it is often highly significant to see what powers Parliament in legislation has left in place - Pg. 149.  The true question in this case is the nature of parliamentary intervention.  Does the legislative scheme decide whether the prerogative may be used to give the notice

Lord Sumption then observed (pg 150) that Parliament may have decided neither of those things.  Mr Eadie said that the question for the court was whether Parliament had in fact decided one way or the other regarding the prerogative.  If Parliament had not decided then the court was "thrown back on to the nature of prerogative power" (pg 151).  Lord Sumption sought to press his point by saying that if Parliament has not decided whether Ministers may give the notice then it means the government loses.  Lord Neuberger asked if Parliament has not decided either way then was it necessary to interpret the ECA72.  Mr Eadie replied that it was.

Lord Mance then asked whether the UK could have withdrawn prior to Article 50 (pages 152-153).  On what basis is it common ground that there could be withdrawal.  Mr Eadie said that the UK could have left by consent and also submitted that the Vienna Convention on the Law of Treaties would have permitted the UK to leave (pg 154) though the latter point was controversial.  Mr Eadie added (pg 154) that Parliament thought about withdrawal.

It was necessary to interpret the ECA72 and also to look at the later legislation.  Parliament could control prerogative powers and decide what domestic legal effects should be attached to the exercise of these powers.  Regarding effects, a situation can be created in which serious legal impacts flow domestically from government action on the international plane.  Such impacts do not require parliamentary intervention prior to them doing so.  Examples included Post Office v Estuary Radio (pg 156) and the Lord Haw Haw case (pg 156-157).  In those cases the change to international facts arose because of government prerogative power on the international plane (pg 157).

Lord Reed commented that you cannot under the prerogative alter some legislation (e.g. Dangerous Dogs Act) but the position was different with EU law.  Mr Eadie replied that was coming close to the Finnis / Millett analysis (pg 158) - Parliament created a situation for EU law which allows international acts by government to flow into domestic law.  That was unlike other legislation.  Lord Reed then asked  whether a Dangerous Dogs EU Regulation could be deprived of effect in domestic law given that it has effect because of ECA72 section 2(1).  Mr Eadie said that was the nature of the argument, for good or ill.  Lord Sumption then asked if the position would be any different if it were a Dangerous Dogs Directive.  Mr Eadie said that a Directive would flow into domestic law via free standing secondary legislation under ECA72 section 2(2).  There was a different form of parliamentary intervention in those two situations and all depends on the form intervention takes.  It has to be considered whether parliament has intervened to control exercise of the prerogative on the international plane and what is the nature of of the parliamentary intervention in relation to the effects that exercising the prerogative power internationally might have on domestic law - (pg 160).

Lord Mance (p160) turned to the argument that the ECA72 was Parliament entrusting legislation to a different order of institution.  Odd to think that this could be undone by executive decision.  It was a radical thing for Parliament to do.  (Pages 160-161).  Mr Eadie replied that the answer depended on what the ECA72 was doing.  Mr Eadie submitted that the ECA72 was a "simple conduit" and did not control executive use of prerogative power.

Regarding Mr Patrick Green's submission, Mr Eadie said: "But to come directly to the point my learned friend Mr Green was making, which I think was the one my Lord was putting to me, which you heard today about it conferring legislative authority on other international institutions, with the greatest of respect, that is not on any view what the 1972 Act could possibly have been doing. Parliament has never purported to legislate, to confer legislative competence in that sense on other sovereign states or other institutions. What it does is to set up a scheme in the 1972 Act under which actions by the United Kingdom Government and other sovereign states on the international plane may create effects flowing back into domestic law. It is not purporting to authorise in a legislative sense another sovereign state to act in any way, shape or form, still less an an international institution such as the EU. It is dealing with the consequences of the exercise of power by the UK Government, and that is the limit of its competence legislatively, by the UK Government on the international plane."

Lord Reed asked whether Mr Eadie was saying that the relevant source of law remains the ECA72 and Mr Eadie replied that was so in relation to effects in domestic law.  Lord Reed - and that is confirmed by the European Union Act 2011 section 18.  Mr Eadie - Exactly so. (pg 163)

Lord Carnwath then referred again to the example of the Youssef case as a good example of the process working.

Mr Eadie continued by saying that the question was what had Parliament  done (pg 164).  A proposition that the foreign affairs prerogative cannot be exercised if it would, might, potentially affect domestic law would have serious consequences (pg 164-165).  Lord Kerr said that the argument is that Parliament has given the citizens of the UK these rights and they cannot be removed other than by Act of Parliament.  Mr Eadie said that his argument is that this is a special type of right  which is contingent, inherently limited (pg 165).  It depends on the ECA72 conduit giving effect to rights created on the international plane by the government exercising its prerogative powers within the EU institutions (pg 166).  

Mr Eadie was pressed by Lord Kerr to confront the ultimate question of whether the rights were or were not created by Parliament.  Mr Eadie maintained that the ECA72 created the conduit and the rights were contingent upon continuing participation in the EU processes used to create rights and obligations from time to time and, secondly, on continuing membership of the EU.

A point by Lord Sumption (pg 168) was that Mr Eadie had to show that a Ministerial decision can effectively alter the source of law and not just the question what rights happen to exist.  Mr Eadie disagreed and said (p 168) - "I respectfully submit, I have to show that the nature of the parliamentary intervention that there has been in this context, from 1972 onwards, allows the Government to continue to exercise its prerogative powers on the international plane, and I have to show that the nature of that parliamentary involvement can and does, with Parliament’s permission, create effects in domestic law."

Transcript Day 4 - Morning and afternoon combined - 4 page version (PDF)

Mr Eadie argued that Lord Pannick and the others ignored the legislative scheme and claimed a constitutional principle (pg 169).  However, the correct approach was to look at the legislative scheme and what it says regarding parliament's intention.  Lord Neuberger commented that what Mr Eadie was saying was that Parliament had created a conduit (pipe) over which it retained control but had left to the government control over what flowed through it.  Mr Eadie replied - Yes.  Lord N then added that if the government pulls out of the treaties the pipe remains but nothing comes through.  Mr Eadie said that was the "empty vessel argument."

Mr Eadie then turned to look at what he argued was the correct way to look at the legislative scheme.  Consider it as a whole and as it is today.  Arguments had been advanced as to why this was the correct approach and the other parties had not quibbled about those arguments.  The issue was the present division of responsibility between the branches of the State and that demanded a current and not historic answer.  The question had to be answered per Robinson (see above) and Lord Bingham in the light of the current state of the constitutional arrangements.

[Note the point on pg 173 regarding "in pari materia" - the principle is that where a statute is ambiguous, its meaning may be determined by looking at other statutes on the same subject matter].

Lord Wilson then asked about elections to the European Parliament under the European Parliament (Elections) Act 2002.  Mr Eadie, there have been brief references over the last few days to our right to vote in European parliamentary elections. Some of us may have thought that in the big scheme of things, perhaps that is rather unimportant, but perhaps it does have an importance, because, correct me if I am wrong, that is securely founded on a conventional domestic statute which you are proposing to repeal or empty of content. If you are saying look at everything, should we briefly look at that too?  Mr Eadie replied - "Our answer will be the same. Our answer is that is of course a freestanding piece of legislation, and it will continue to stay on the books, as it were, after withdrawal and after the two-year period, even if no agreement is reached. So it sits a bit like regulations that are made to implement directives but in primary legislative form.  Our respectful submission in relation to the 2002 Act is that its fundamental premise is that we continue to be members of the club, so it is of course different in form, but my answer is essentially the same."

Mr Eadie then submitted that the character of the ECA72 was not altered because it introduced a new source of law into out system (pg 177).  Also, the ECA72 was NOT needed as a precondition for ratification (pg 177-178).  It is government practice not to ratify until legislation is in place so as to avoid breaching obligations but that it not the same thing as saying that prior legislation is needed to act on the international plane (pg 178).

Mr Eadie next noted how the ECA72 repealed the EFTA legislation and said that the government had notified using prerogative power that the UK was leaving EFTA. [Note: repeal of EFTA Act 1960 is at Schedule 3 of the ECA72 - as originally enacted].

The legislation following the ECA72 was also constitutional.  Mr Eadie then focused on the 2008 Act and the 2011 Act and noted that 2008 was focused on the controls Parliament wished to impose on prerogative powers.  It was an explicit and nuanced scheme of controls.  Lord Pannick had referred to European Union (Amendment) Act 2008 section 6(1)(a) - "A Minister of the Crown may not vote in favour of or otherwise support a decision under any of the following unless Parliamentary approval has been given in accordance with this section - (a) Article 48(6) of the Treaty on European Union (simplified revision procedure) ..."  but Art 48(6) clearly prevents this procedure being used to increase EU competencies.  Discussion regarding the controls imposed continued - pages 183 to 185. 

Article 50 came with the Lisbon Treaty and, in the 2008 Act, Parliament did not impose control over Art 50.  Parliament added the 2008 Act to the ECA72 and Mr Eadie submitted that this made rights subject to Art 50.  Arguments that Parliament cannot have known the effect of Art 50 cannot be sustained and neither can argument that Parliament operated on the basis that Art 50 would not be used (pg 188).

Lord Sumption asked whether Mr Eadie was saying that the 2008 Act codified all the circumstances in which parliamentary control was required.  Mr Eadie said that he was not making that submission but the selection of what Parliament wished to control was significant.  Lord Sumption said that an alternative view was that the 2008 and 2011 Acts were directed at a highly specific problem - the internal procedures created by Lisbon.  Mr Eadie did not accept that and said it was Parliament intervening to decide what it wished to control.  In 2011, Parliament revisited the issue and dealt specifically with Art 50 in Schedule 1.  [Note: Schedule 1 referred to Art 50(3) - extending the time limit in Art 50 beyond 2 years].

On the 2015 Act, Mr Eadie made two preliminary points.  First,he referred to the Shindler case at paragraph 19 where Lord Dyson MR said: "I accept that Parliament is sovereign and that it does not need the mandate of a referendum to give it the power to withdraw from the EU. But by passing the 2015 Act, Parliament has decided that it will not withdraw from the EU unless a withdrawal is supported by referendum. In theory, Parliament could decide to withdraw without waiting for the result of the referendum despite the passing of the 2015 Act. But this is no more than a theoretical possibility. The reality is that it has decided that it will withdraw only if that course is sanctioned by the referendum that it has set in train. In other words, the referendum (if it supports a withdrawal) is an integral part of the process of deciding to withdraw from the EU. In short, by passing the 2015 Act, Parliament decided that one of the constitutional requirements that had to be satisfied as a condition of a withdrawal from the EU was a referendum."

On this, Mr Eadie said: "Can I start with two preliminary points, and I am just going to give you references, given the time, if I may. Firstly, the point about whether Lord Dyson in paragraph 19 of Shindler was or was not assuming. We dealt with that in our case below, our skeleton below - if you really want it, MS 12227 -- but the short point is the one that they were not deciding or turning their minds to that issue."

The second preliminary point on the 2015 Act was that it was to be distinguished from the 2011 Alternative Voting referendum because there was no prerogative power to alter the voting system and so the AV legislation had to deal with the consequences had that referendum been in favour of AV.  [Note: In the event, AV was rejected].

Mr Eadie argued that the 2015 Act sat in the context of the existence of the 2008 and 2011 Acts and the fact that Art 50 was in place.  The 2015 Act asked the withdrawal question and set up the referendum to answer it.  "A flexibility of the constitution is important -- and I am not going to go back on that, Robinson. It is language and not divination, of course, but you have plenty of language in the 2008 and the 2011 Acts to work through and we know that in the context of the 2015 Act, Parliament chose to set up the referendum."

Mr Eadie then looked at the point that, in effect, his opponents were asking the court to say that Parliament should answer the same question as that put in the referendum.  He said: "That created a difficulty which Lord Pannick realised. It created a difficulty because that made no sense in the context of legislation in which Parliament had already decided to put that very question to the people in a referendum and had set up an act for the purpose of doing that, and so the answer which he was driven to in order to explain away that constitutional strangeness, to put it at its lowest, was that that might be or might not be the only question that Parliament was interested in.  Parliament might be interested in other questions but that is not an answer.  It is not an answer because it bears no relation, the possibility that Parliament might introduce amendments and the Lords want to discuss negotiating strategy, all of that, it has nothing to do with his legal case. His legal case is you need primary legislative authority just to give the notice."

Mr Eadie the sought to address the position if the court was against him on the ECA72.  His view was that the 2015 Act indicated that thereafter the prerogative could properly be used (pages 196-198).

At pg 198 Lord Carnwath the sought Mr Eadie's position about a point made by Maguire J - (judgment at para 105) and wanted to know whether there was any difference between Mr Eadie's position and that of the Attorney General for Northern Ireland.  Maguire J had said: "In the present case, it seems to the court that there is a distinction to be drawn between what occurs upon the triggering of Article 50(2) and what may occur thereafter. As the Attorney General for Northern Ireland put it, the actual notification does not in itself alter the law of the United Kingdom. Rather, it is the beginning of a process which ultimately will probably lead to changes in United Kingdom law. On the day after the notice has been given, the law will in fact be the same as it was the day before it was given. The rights of individual citizens will not have changed – though it is, of course, true that in due course the body of EU law as it applies in the United Kingdom will, very likely, become the subject of change. But at the point when this occurs the process necessarily will be one controlled by parliamentary legislation, as this is the mechanism for changing the law in the United Kingdom."

Mr Eadie replied that he was tolerably neutral about this.

The final submission of the whole case related to the motion in Parliament the day before (i.e. 7th December 2016). This was the outcome of a debate on an Opposition Motion together with an amendment put forward by the Secretary of State for Exiting the EU.  The debate was looked at in this earlier post.  [Note: It is a basic point that resolutions in Parliament do not change the law].  Mr Eadie argued that the resolution of 7th December was highly significant but not legally binding.  The House of Commons had given its approval to the giving of notice and had specified a date.  Lord Neuberger made the point that the Queen in Parliament had not given approval - there is no Act.  Lord Neuberger put to Mr Eadie = "Do you accept that, if you are wrong on the interpretation of the 1972 Act and the 2015 Act and other subsequent acts do not help you, then this motion does not help you?  MR EADIE: I do. On that premise, I do.  THE PRESIDENT: Thank you.

The hearing concluded with Lord Pannick thanking the court and its staff and with Lord Neuberger saying that - "It bears repeating that we are not being asked to overturn the result of the EU referendum. The ultimate question in this case concerns the process by which that result can lawfully be brought into effect."

The court adjourned with judgment to be given as soon as possible.  

The court had the usual Christmas and New Year recess though it is unlikely that the justices will have done nothing about the case during that time!  Hilary Term 2017 commences on the 11th January 2017.

Castell y Gwynt - Snowdonia

That concludes this (rather lengthy) look at the hearing.   The arguments have been legally fascinating and the standard of advocacy was, as one might expect, very high albeit with a variety of styles. 

Essentially, there are two principal areas for the court to address - (1) the government's appeal against the High Court decision and (2) the Devolution issues 

There is no doubt that the case is of immense importance constitutionally and we are most unlikely to see another of this magnitude in our life times.   Whatever the decision, a barrage of legal commentaries will follow.   

It would not be wise to use the questions put to counsel as an indicator as to how individual justices will decide.  The hope may be that there is a single judgment but individual justices are entitled to give their own judgments whatever their decision.

A government "win" on the appeal will leave the government clear to give the Article 50 notice secure in the knowledge that the notice will be in accordance with constitutional requirements.  If the government loses then the authority of Parliament will have to be obtained and that will have to be by Act of Parliament.  For my part, given the immense consequences of leaving the EU, I have always thought that the latter was the better option legally - It is Brexit (3) - The role of Parliament.  Parliament would then have considered not just the referendum outcome but also the wider consequences for the nation as a "United" Kingdom of England, Wales, Scotland and Northern Ireland.

I hope that these posts have been of some help ....!   

Please note a Court Order is in place regarding the confidentiality of some details relating to the parties.

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