Constitutional Law Group November 15, 2016 Europe, European Union, Judicial review, Scotland, UK government, UK Parliament

Sionaidh Douglas-Scott: Miller: Why the Government Should Still Lose in the Supreme Court (Even with New Arguments)

In the landmark legal decision in Miller v Secretary of State for Exiting the EU, the High Court ruled that the government cannot use the royal prerogative to trigger Article 50 EU Treaty, and so leave the EU, without Parliament’s authority. Since that ruling was given, a flurry of commentary on it has appeared. Some of the commentary in the press has been highly critical and unpleasantly vitriolic in nature, leading to the (eventual) defence by the Lord Chancellor of the independence of the judiciary. Commentary in academia and the legal blogosphere has been much more measured but ever growing in quantity, as the many postings on the UK Constitutional Law blog reveal. This is unsurprising. For many, this is the constitutional case of its generation, and which constitutional lawyer worth their salt would not wish to make their contribution? Clearly, I am not hesitating to make a contribution. However, I do so now in response to what I have found a somewhat surprising development – the large amount of bloggers and commentators who have been critical of the High Court judgement (see, for example, the postings on the Judicial Power Project) and seek to provide what are perceived to be stronger arguments, often in highly technical, elaborate detail, that the government might use.

I disagree with the arguments they make. As the rest of my post makes clear, I stand by the central holding of the High Court ruling, which I (borrowing the expression from Keith Ewing on this blog although not necessarily agreeing with everything he writes about Miller) call ‘Constitutional 101’. I believe the High Court judgement is correct, for what are very important reasons of UK constitutional law, deeply rooted in constitutional history. I do not believe there are strong arguments to be made against the judgment’s central holding. I recognise that others disagree. I also recognise that the uncodified, flexible British Constitution very often provides no clear answer to major questions, and this enables the elaboration of tenable arguments, as in this context. Nothing that I write approves any Parliamentary action that would ‘block Brexit’ and I do not question the good faith of those who write criticizing the High Court judgement. However, I am somewhat concerned by the volume of arguments geared to enabling government action, when the central argument of the litigation revolves around the protection of rights. Should lawyers be so zealous in elucidating arguments that make it easier for government to override rights?

‘Constitutional 101’

Article 50 TEU states that

‘1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.’

The basis of the claimants’ case in the High Court was that the ‘constitutional requirements’ require Parliament’s authority for triggering Article 50 TEU. A starting point for their argument is that the UK enabled its accession to the (then) EEC to be ratified by means of the European Communities Act [ECA] 1972. Under British law, a statute may only be repealed by another statute, and not by the exercise of prerogative power. This is clear from Fire Brigades Union and other cases. However, as the actual effect of Article 50 notification would be to trigger a 2 year timeline at the end of which the UK would cease to be an EU member state (unless extended by unanimity of all EU Council members) triggering Article 50 in fact nullifies the effect of the ECA in UK law. The prerogative cannot be exercised in a manner which would ‘turn a statute into what is in substance a dead letter’ or ‘cut across the object and purpose of an existing statute’ (see again Fire Brigades Union).

Furthermore, because constitutional principle holds that only Parliament may limit or abrogate rights, it follows that Article 50 may, because of its ultimate effect on rights, only be triggered by Parliament. The Laker Airways case provides further support for this proposition. If the UK had not held a referendum, the Government could not have abrogated the rights and responsibilities in the ECA by withdrawing from the EU by unilateral, executive act, and the EU Referendum Act 2015 provides no explicit authority for amendment or repeal of the ECA. It was an advisory not a mandatory referendum. These rights-related arguments are confirmed by Lord Oliver, who stated in Rayner (Mincing Lane) v DTI: ‘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.’

It therefore follows that it would be necessary for an Act of Parliament to provide the authority for Article 50 notification (and prospective repeal of the ECA two years after making the notification).

Now there is resistance to these arguments. It is contended, by eg Elliott, that the argument that, by triggering Article 50, the Prime Minister would be taking power to ‘prospectively repeal’ the ECA, is incorrect. But as David Pannick argues, ‘the crucial point is that, as a matter of law, Article 50 notification commits the UK to withdrawal from the EU, and so is inconsistent with the 1972 act.’

I will presently examine the counter arguments in greater detail. But for the meantime, I want to stress the foundational and deeply historical nature of the key principle at issue in the claimants’ case. Phillipson, after a searching and highly detailed examination of caselaw, has contended that ‘arguably that normative concern typically generated by the Executive’s use of prerogative to frustrate statutory purpose is absent in this particular case.’ (G Phillipson, ‘A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament’, (2016) MLR 1087). Yet, what could be more fundamental and normatively compelling than the reasoning behind the key principle at issue here: namely, that the government cannot change legislation by executive fiat? As Keith Ewing writes, ‘As the High Court has made clear there is no question that the government cannot change domestic law by means of prerogative power. Constitutional Law 101.’

During the EU referendum, voters were constantly urged to ‘take back control’ and regain Parliamentary sovereignty from the EU. Yet in what sense would Parliament be ‘taking back control’ if the government is able, using its ancient prerogative powers, to manage the whole EU withdrawal process without any significant parliamentary involvement? That would be extremely undemocratic, and democracy is what we are told the EU referendum was about. Furthermore, the Court’s judgement makes clear that the exclusion of Parliament in the Article 50 process is not only undemocratic, it is illegal. There is a wealth of case law supporting the claimants’ case, some of it dating back to the 17^th century and the English civil wars. These wars, and the ejection of two kings, established that Parliament is sovereign and the Executive cannot ignore it, where it has no legal authority to do so. This judgement makes clear that the government does not have any such legal authority in the context of triggering Article 50.

So I take the claimants’ central argument to rest on compelling, fundamental, historically supported principles of UK constitutional law. The High Court judgement upholds them. Nonetheless, the Government is appealing this decision. It will need stronger arguments if it is to succeed. There have certainly been plenty of lawyers willing to step up and provide arguments that might provide a compelling case for the government. If the government wins in the Supreme Court, then academic constitutional lawyers will have helped them win. The remainder of this blog considers a few such arguments, and attempts a critique of them.

Against Finnis

One argument that has been aired and some consider persuasive is that of John Finnis. Finnis argues that the claimants’ argument in Miller contained a ‘glaringly fallacious syllogism’. This, according to Finnis, takes the following form: (1) statutory rights enacted by Parliament cannot be destroyed by executive action without Parliamentary statute/authorization; (2) myriad rights acquired by UK persons under EU Treaties given effect in UK by s. 2(1) ECA 1972 are statutory rights enacted by Parliament; (3) therefore no executive action can be taken to terminate the UK’s adherence to those Treaties without authorization by statute/other parliamentary authorization. Finnis rejects these conclusions as ‘fallacious’ because it is his argument that ‘rights acquired by virtue of s. 2(1) ECA are not “statutory rights enacted by Parliament”’, but instead ‘rights under EU law, as it stands “from time to time”’. To explain his argument, he draws an analogy between EU law and some provisions in double-taxation treaties, which are given statutory effect in UK law. Finnis argues that, although rights created by the ECA and Tax Acts (eg Taxation (International and Other Provisions) Act 2010, [TIOPA]) are statutory in the broad sense that domestic statutory provision is in both cases a necessary condition for those rights’ legal efficacy in the UK, they are non-statutory in the sense that Parliament was not the original source for the rights, which in fact may be changed, or eliminated, at international or EU level, without intervention by the UK Parliament. Thus he postulates a fundamental asymmetry between the introduction of treaty-based rights into UK law and their termination. Introduction can only be by statute. Termination, however, can be by executive action. ‘Constitutional law 101’ cannot apply, because these are not statutory rights. Finnis also contends this argument was not made sufficiently clearly during the High Court litigation: ‘The true relevance of the double tax treaties to the subject of this litigation thus disappeared from view.’

Mark Elliott has described Finnis’s argument as ‘outstandingly clear — and in my view compelling’, continuing that this ‘Shows exactly how Government *should* have argued Article 50 case’. Elliott and Hooper, in their ‘Critical reflections’ on the Miller judgement, also argue that ‘The issue is whether the rights whose removal it is said Article 50 would impact upon in effect form part of ‘the law of the land”, i.e. domestic law.’

But is Finnis’s argument really compelling? I think at least 4 arguments can be made against it.

First, Finnis’s analogy does not hold. Bilateral double taxation treaties are not comparable to multilateral EU treaties and do not give rise to rights comparable to rights acquired through EU membership. Section 2 TIOPA ‘gives effect’ to double tax arrangements made with other territories. However, there the analogy ends. In what sense are these ‘rights’? Double tax treaties are concluded to ensure people do not pay tax twice on the same income. But these tax treaties do not themselves impose taxes, nor create rights. EU treaties do create individual rights. Tax treaties accord at most a privilege to UK taxpayers to get relief from UK tax if there are also obligations to pay tax on that income elsewhere. The domestic obligation continues, but is suspended, and, if the treaty is terminated, an individual becomes liable to pay tax to UK authorities. This is not the same as having an entitlement. Individuals concerned do not lose a ‘right’. In fact, if there are any rights at issue, then these are the ‘rights’ of states to tax individuals.

Second, Finnis’s analogy does not take account of the special and singular nature of EU membership. Even if every single EU right is not individually itemized and detailed in the ECA, this does not mean that EU rights are not part of national law. EU law is, according to the Court of Justice in van Gend en Loos, a ‘new legal order’ which gives individuals directly effective, enforceable rights which become part of their national legal heritage. That is the point of direct effect, a crucial doctrine in EU law whereby individual rights can be enforced in national courts. EU law and EU rights are not a foreign body, a distinct and separate element, in the way most international treaties are regarded by UK law. Direct effect has allowed EU law to pierce the veil of domestic law and for EU law to become directly enforceable in national law, as part of national law. The ECA provides a statutory basis for this (and a mechanism to deal with the demands of parliamentary sovereignty) but direct effect also ensures a direct and unbroken link between enforceable national rights and their ultimate EU source. The according of vertical direct effect to unimplemented directives recognises this. This means that State action or inaction (ie failing to implement an EU Directive) alone cannot override individual EU rights.

Third, Finnis also seeks to base his case on the argument that EU rights already can be removed by Executive action alone, ie if EU law is changed by EU Institutions. This he believes, illustrates that UK Parliament involvement is not needed for their elimination. But in what sense is this so? Repeal or elimination of rights in the EU treaties would have to be by treaty amendment, a serious enough repeal to require approval by the UK Parliament. Absent such approval, the Treaty could not come into force. In fact, I would ask how many such rights have been repealed by the EU in this way? Not any of the fundamental principles to be found in the EU treaties, such as free movement of persons, or equal pay for men and women. However, in cases outside of treaty amendment (where an EU Regulation is repealed for example) where rights are eliminated, the House of Commons European Scrutiny committee has the possibility of assessing the relevant EU measure, which should be deposited in Parliament by the Government. In this way, EU law is again different from double taxation treaties, because of the special role accorded to scrutiny of EU law by the UK Parliament. That is why there exists a dedicated EU Scrutiny Committee and also the House of Lords EU and sub-EU committees. In particular, the European Scrutiny Committee has the remit to look at the significance of EU proposals (which should include repeals of significance) and decide whether to clear the document from scrutiny or withhold clearance and ask questions of the Government. All documents deemed politically or legally important are reported on in the Committee’s weekly Reports. Therefore, if the EU Scrutiny Committee is doing its job, Parliament should have a role in the repeal of EU rights.

Finally, even if, contrary to what I have just argued, the ECA does not create statutory rights in the sense required by Finnis, it is undeniable that the European Parliamentary Elections Act 2002 does provide statutory rights, and so is in no sense comparable to the double taxation relief treaties to which Finnis makes reference. Section 8 of this Act states that ‘(1) A person is entitled to vote as an elector at an election to the European Parliament in an electoral region if he is within any of subsections (2) to (5).’ This provision clearly creates, not just gives legal recognition to a right, and this is clearly a right that will never be restored by Parliament if the UK leaves the EU.

Therefore, I think there are (at least) 4 reasons why the Finnis argument should not defeat ‘Constitutional law 101’.

Against Robert Craig

Another point, possibly helpful to the Government appeal in the Supreme Court, is that employed by Robert Craig. Craig argues that there is no need for any legislation before Article 50 may be triggered because there already exists UK legislation which provides just the statutory authority necessary for executive action in this area. This legislation (originally EU (Amendment) Act 2008, now EU Act 2011) suspends any prerogative source of authority to act. Craig argues that the EU Act 2008 incorporated the Lisbon Treaty into UK law and inserted it, in terms, directly into s. 1(2) ECA. This means, argues Craig, that Article 50 is now incorporated in UK law by primary legislation, and so executive discretion to use it is already authorised and approved by Parliament. This is quite contrary to the submission made by the Secretary of State in Miller, who argued that neither the 2008 Act nor the 2011 Act restricted the Crown’s prerogative power to give notice under Article 50, so the Government would have to engage in a clear change of course if it were to embrace Craig’s argument.

Craig’s argument is highly detailed and expanded elsewhere. Keith Ewing also appears to support it in this blog (‘I had thought that a general power to this effect already existed in the 1972 Act (as amended by the European Union (Amendment) Act 2008’… by incorporating Article 50, Parliament has provided that authority and government power to withdraw as a matter of domestic law.’)

However, rather like Finnis’s argument, I believe Craig’s contention fails to do justice to the nature of EU law, and its relationship with UK law. First, I argue that incorporating the Lisbon Treaty into UK law, and thus recognizing the new Article 50 procedure in UK law, is not the same thing as, nor is it sufficient, to authorise the executive to trigger Article 50 according to the UK’s ‘constitutional requirements’. For a start, there is certainly nothing in the EU Act 2008 which explicitly does anything like provide such authorization. Given that to do so would have a considerable impact on UK constitutional law, giving it a power to override statute, one might expect it to have been done explicitly and in clear language, in the detailed way one finds, for example, in the Fixed Term Parliaments Act 2011, which switched the power to dissolve parliament from a prerogative to a statutory basis. The EU Act 2008 did nothing like this.

Secondly, Craig’s argument entails that Article 50 confers a right (according to s.2(1) ECA) for the UK to exit the EU. He writes: ‘Furthermore, s 2(1) ECA gives direct effect to that right without the need for further enactment’ (Craig, ‘Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the EU Referendum’ (2016) MLR 1057). I disagree. Article 50 is not directly effective — it is not clear, precise and without need for further implementation, according to relevant European Court of Justice [ECJ] caselaw, going back to van Gend en Loos. Craig contends that the meaning of direct effect has changed in EU law. Yet, even if it has, at a bare minimum to be directly effective, an EU provision should impose clearly defined obligations on Member States, and provide enforceable, individual rights in domestic law, as already discussed earlier in this post. In fact, many EU treaty articles are not directly effective, because they do not do this. They concern EU Institutional procedures, and do not relate to individual claims under national law. Much of Article 50 is like this, in that most of it relates to procedures in the EU Council or Parliament, and is certainly not enforceable at the behest of individuals. Only Article 50(1) explicitly relates to national law, in its reference to national ‘constitutional requirements’, but in this case the reference to these requirements is far too vague to satisfy any test of direct effect, for which the provision must be clear and precise. For example, in Francovich, the ECJ found that Directive 80/987 lacked direct effect because it did not provide sufficient certainty on the nature of the organization, operation and financing of the guarantee institutions required to provide minimum protection to employees in the event of the insolvency of their employer. Indeed, to describe Article 50 as directly effective seems to misunderstand the purpose of direct effect, which is to provide individuals with enforceable rights. The doctrine was elaborated in the ECJ to ensure that states could not undermine individual rights by failing to comply with EU obligations. Can states then benefit from direct effect? This seems to set the doctrine on its head. Therefore, I would argue that Craig, along with Finnis, misunderstands the relationship of EU law and national law, and the very nature of EU law itself. It is a misnomer to use the term ‘direct effect’ in the context of Article 50 in order to circumvent any explicit national statutory authorization for the government to trigger withdrawal proceedings.

Sovereignty: parliamentary or popular?

Hooper and Elliott also argue in their ‘Critical Reflections’ on the Miller judgement that ‘The Court’s approach reflects a particular (and contested) notion of “representative parliamentary democracy” that arguably traces its origins to the writing of Edmund Burke’. I disagree with Elliott and Hooper’s critique of the Court on the parliamentary/popular sovereignty issue. However, I recognise that issues of representative democracy, popular and parliamentary sovereignty are immense in nature and cannot be properly dealt with here. Therefore I make just two comments – one very general, and the second of particular relevance to litigation of Miller in the Supreme Court.

First, I believe the High Court was correct in its treatment of the issues of parliamentary and popular sovereignty. The EU Referendum Act 2015 was an advisory referendum. The position of referendums is somewhat unclear in UK constitutional law, but there is no authority that they can override parliamentary sovereignty. The referendum vote provided no mandate for the government to override rights provided by UK statute without first obtaining parliamentary authority.

UK constitutional law (Scotland may be different) has not acknowledged the principle of popular sovereignty as a legally determinative principle. (I write ‘legally determinative’ because I do not argue that popular sovereignty, or referendums, are of no significance at all.) Instead, sovereignty is seen as resting with the Crown in Parliament, and UK politics as based on representative democracy. Although, in 1653, Oliver Cromwell’s Instrument of Government stated that legislative power resided in the person of Lord Protector ‘and the people’ this doctrine did not continue after Cromwell’s fall. England did not develop a tradition of popular sovereignty in constitutional terms, even if ‘sovereignty of the electorate’ has been used in political terms. However, even here, sovereignty of the electorate enables the people to choose the Members of Parliament who will form the government, rather than grounding the British Constitution in the authority of the people. In this way, the people is constitutionally embodied in Parliament. Parliamentary sovereignty possesses a political dimension, given that Parliament provides a forum in which complex issues of public governance are debated in a (hopefully) ordered and rational manner.

UK constitutional law simply lacks the resources to argue that popular sovereignty, namely the referendum vote, can somehow trump parliamentary sovereignty and provide a mandate for the government to trigger Article 50 without parliamentary authority. Some have argued that ‘popular sovereignty’ is highly relevant in the context of the EU referendum, and High Court litigation. Vernon Bogdanor, for example, writing in the Sunday Times, argued that the constitutional issue in the High Court ruling is that of Parliament versus the people, not government versus parliament. Yet how can Bogdanor reach this conclusion? The Miller case was about the powers of the executive versus Parliament, the question being whether the executive can act without parliamentary approval or at least discussion. There was no legal framing of this as an issue of parliamentary versus popular sovereignty.

However, should popular sovereignty be argued as germane to the Miller litigation, the government should be careful how it makes the case. Litigation of Miller in the Supreme Court will include interventions from all 4 nations of the UK, each making its own submissions. The doctrine of popular sovereignty, even if not able to override parliamentary sovereignty in the English constitutional setting, is seen as being of particular relevance in Scotland where it has a different resonance. In MacCormick v Lord Advocate, Lord Cooper famously stated that: ‘[the] principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.’ Instead, reference is often made to a Scottish tradition of popular sovereignty claimed to date back to the 1320 Declaration of Arbroath. The claim is that, prior to the 1707 Act of Union, sovereignty rested in the Scottish people, and that it still does so, in spite of Diceyan notions of parliamentary sovereignty. Given that the 1707 Union brought into being the British state, it is argued that we should recognise that the British constitution is not simply the English constitution, but that Scottish constitutional principles (and Northern Irish, and Welsh) play their part in a multiple constitutional order. Reflection on the entirety of Union, and its constitutional basis, poses the question of whether, at least in Scotland, popular sovereignty might form the basis of Scotland’s own right to determine whether or not it exits the EU. Scotland voted (62% of those voting) for the UK to remain in EU. Nicola Sturgeon argued that to withdraw the UK from the EU, against Scotland’s will, would be ‘democratically indefensible’.

Therefore, what reason is there to argue for a legally enforceable popular sovereignty in the EU referendum context, when the UK has no recognizable tradition of popular sovereignty, nor any great tradition of holding referendums, if popular sovereignty is ignored in context of the Scottish vote, where there exists a much clearer tradition of sovereignty of the people? If the referendum vote is to be analysed as a feature that reflects a growing recognition of a principle of popular sovereignty, even if there is no clear legal authority for this, then surely the argument must apply in the case of the a Scottish vote, where there was a clear vote of a different nature? Is this an argument that the UK government would wish to open up?

Is Article 50 reversible?

In Miller, the claimants asserted, and the government conceded, that a notification under Article 50 cannot be unilaterally withdrawn by the notifying Member State. However, such a position is not accepted by everyone. Authorities such as Jean-Claude Piris, Lord Kerr and Paul Craig have argued that Article 50 may well be reversible. Indeed it is possible that the government might try to change its position, and argue that a notification under Article 50 could be revoked (although this is certainly not indicated in the government’s Grounds of Appeal). This would be the opposite of its High Court concession that triggering Article 50 would inevitably result in the withdrawal of the UK from the EU (and so lead to loss of individual rights). In this way, the causal chain between triggering Article 50 and automatic loss of rights in 2 years would be broken. This is an important point. The irreversibility or not of Article 50 was certainly taken very seriously in the High Court. The Transcript of that hearing reveals the Lord Chief Justice as stating (at 193): ‘From our perspective, it seems to me absolutely essential for us to decide that it is irrevocable.’

An argument that Article 50 is reversible might be a strong argument against the claimants’ case. Yet such a change of argument brings powerful disadvantages for the government. First, it would involve a question of EU law, because the issue of the revocability or not of Article 50 could only be conclusively determined by the European Court of Justice. For this to happen, a reference would have to be made to the European Court in Luxembourg, and this would take time, further delaying the date on which Article 50 could actually be triggered. Such a reference would need to be made under Article 267 of the Treaty on the Functioning of the European Union [TFEU], which provides for preliminary reference from national courts to the European Court in Luxembourg. Under Article 267 TFEU, a domestic court of last instance, such as the UK Supreme Court, is under a duty to make a reference if a decision on an issue of the interpretation of the EU Treaties, in this case the revocability of Article 50, is necessary for the domestic court to give judgment. If the government maintains its previous argument that Article 50 is irrevocable, then arguably, a decision on this point is not necessary for the Supreme Court to give a judgment, although this issue is for the Court to decide. It is the Court, and not the parties, that decides whether to make the reference. If the government changes its arguments, a reference becomes more likely.

Moreover, such a reversal of the government’s arguments would be politically risky, as it would amount to acknowledging that the UK might decide not to leave the EU, and that Brexit does not mean Brexit after all, that Brexit is not unstoppable. This might not seem a very likely position for the Government to take. Yet given that such reversal must be the government’s best chance of winning in the Supreme Court, might it nonetheless take this course? For example, in a statement made in the House of Commons on 7 November, the Secretary of State for Exiting the EU suggests a route to this. In response to a question why government lawyers had conceded that an Article 50 notification would be irrevocable, David Davis said: ‘The reason was not really a point of law so much as a point of constitutional and political reality. I did not see it as possible that we could reverse the decision of the British people.’

Clearly law and politics can be separated, but how ethical would it be for the government and their lawyers to do so in this case? For the government to shift their position would be tantamount to arguing that although they now believe they argued a position wrong in law in the High Court, and now wish to make the opposite argument, even if that new argument is upheld, they have no intention of acting on it, no intention of ever revoking any withdrawal notice.

In conclusion, I argue that the strength of the High Court holding, ‘constitutional law 101,’ along with the reasons I give for defeating some new arguments the government may seek to advance in the Supreme Court, mean that it should lose its appeal. Of course, I have not considered the myriad of other arguments which have been advanced as to why the High Court judgement is wrong, and no doubt more are still to come. Yet, at base, I still believe this case to be about the point that the government should not be able to repeal legislation (and especially not legislation that provides individuals with rights) by executive fiat. We should not lose sight of this point.

Sionaidh Douglas-Scott, Anniversary Chair in Law, Queen Mary University of London

(Suggested citation: S. Douglas-Scott, ‘Miller: Why the Government Should Still Lose in the Supreme Court (even with new arguments)’, U.K. Const. L. Blog (15 Oct 2016) (available at https://ukconstitutionallaw.org/))

100Comments

Add yours

1

André Clodong on November 15, 2016 at 9:25 am
Reply

The time has arrived for a simple, populist slogan such as: Brexit? Break it! T-shirts and posters would fly of the shelf.
2

Mike Fearon on November 15, 2016 at 10:16 am
Reply

I have already commented on the contribution from Professor Ewing, and I will not repeat all the points here. However, much of this argument, well constructed as it is, may well be sterile if the Supreme Court, or the participants, revisit the issue dealt with in paragraphs 15 and 16 of the judgement and the conclusion that “nothing really turns on this”. I suggest that any loss of rights, or alterations to domestic law flow from the decision to withdraw from the Union, and not from the notification to the Council of the intention to withdraw.

The government argues that the decision has been made, by the combination of the 2015 Act of Parliament authorising the referendum, and the referendum itself. If the decision has been made, the Council must be notified. Parliament can authorise the notification through its own processes without the assistance of the courts, should it deem this to be appropriate.

The principal litigant agrees, publicly, with the government that the decision has been made, and states, publicly, that she does not wish to challenge it. The notification is a treaty obligation, and not justiciable. The litigation on behalf of Ms Miller should be abandoned. Other litigants may wish to reframe their argument.

If Parliament wishes to reject the result of the referendum and decide to remain within the Union it can do so, without the need for courts, lawyers or legislation. In that event, no notification is required or appropriate. The eleven law lords could all take a short holiday, and a good deal of expense could be spared.
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  grahamwood32 on November 15, 2016 at 3:15 pm
  Reply
  
  MF This is a good post and comment with which I fully agree. Sometimes the simplest point is the best and most effective, and lets hope that the SC will grasp the central issue you have identified, namely the clear difference between an actual decision to withdraw from the EU and the “notification to the Council of the intention to withdraw.”
  In my view this distinction is a vital one because such a notification on the part of the government is just that and no more. Indeed as you and many argue, it is because the decision to leave (by the electorate) on the terms set out by the 2015 Referendum Act that the government is obliged to inform the Council accordingly.
  It would be extremely odd and illogical for government to fail to act on the terms of Article 50 in the light of the referendum result. Whether that may be termed “triggering Article 50”, or a formal declaratory letter to the Council is immaterial.
  
  Given this point it seems to me that long legal arguments about loss of “rights” and the possible amendment or repeal of the ECA 1972 made by the author of this piece and many others in the same vein are at this point not relevant and only serve to muddy the waters. Thus the author:
  
  “because constitutional principle holds that only Parliament may limit or abrogate rights, it follows that Article 50 may, because of its ultimate effect on rights, only be triggered by Parliament”
  
  In reply it should be clear that simply notifying an intention to leave the EU has no immediate bearing on the issue of “rights”, and the argument should not be used in order to delay or frustrate the will of the people and action by the government.
  
  Incidentally and in response to her point about the “ultimate effects on rights”, it has been suggested by some (notably John Redwood MP amongst others) that such rights can in the first instance be fully protected by amending the ECA ’72 by incorporating all EU law into British law, which would then be subject to domestic parliamentary scrutiny after we have formally left the EU.
  
  Finally, with regard to the Royal Prerogative I’m puzzled by the fact that not one of the many contributors to the ongoing presentation of papers under the UKCLA have as yet addressed the thorny issue that the RP has been used by government to endorse every EU treaty from Rome to Lisbon with consequent effects upon domestic legislation and “rights”. On what basis therefore should there be objection when it is necessary to use the RP to reverse this process?
  
  Thus one MEP recently re the High Court decision:
  “The reasoning of the judgement is questionable. In the past, whenever a Eurosceptic went to Court to challenge any of the unconstitutional changes to UK law brought about through EU Treaties, the Courts refused to hear us on the grounds that international treaties are matters solely for the government under the Royal Prerogative.”
  - 4
    
    Chris V on November 22, 2016 at 5:16 pm
    
    To answer your question about the use of the royal prerogative. Ministers do use the prerogative but treaties have no domestic effect until placed before Parliament in accordance with the Constitutional Reform and Governance Act 2010.
    A recent post makes the point that article 50 triggered by royal prerogative would frustrate the purpose of ECA1972 and so would effectively breach the rule that common law and statute cannot be overturned by this means.
  - 5
    
    Richard Allen on November 23, 2016 at 10:49 am
    
    This exact point is the core of the Judgment
6

Sionaidh Douglas-Scott: Miller and Article 50: Why the UK Government Should Still Lose in the Supreme Court (Even with New Arguments) — UK Constitutional Law Association – Bermuda Legal on November 15, 2016 at 11:06 am
Reply

[…] via Sionaidh Douglas-Scott: Miller: Why the Government Should Still Lose in the Supreme Court (Even with… […]
7

Chris V on November 15, 2016 at 11:12 am
Reply

A very persuasive argument and consolidation of the debate to date and of the difficulties of using the revocability of article 50 argument. Some of the arguments used by other posts may make legal sense but they make no political sense as this article usefully reminds us.

It is extraordinary in light of the Brexit debate about the sovereignty of Parliament that the government should have embarked on this course in the first place. Have they no sense of irony? All the detailed legal arguments are all very interesting but the arguments supporting the government’s position appear to lack democratic legitimacy. And for the government to pose as defenders of the people against Parliament is risible. Heaven knows what our 17th century forefathers would have made of it.

There are legal issues here but there are some simple political points that underpin the case and these are expressed by professor Douglas-Scott as follows :”Yet, at base, I still believe this case to be about the point that the government should not be able to repeal legislation (and especially not legislation that provides individuals with rights) by executive fiat. “. Is that a legal or a political point or a vector that reminds us that constitutional law is also politics.
8

Sam Varadi on November 15, 2016 at 2:00 pm
Reply

“However, as the actual effect of Article 50 notification would be to trigger a 2 year timeline at the end of which the UK would cease to be an EU member state (unless extended by unanimity of all EU Council members) triggering Article 50 in fact nullifies the effect of the ECA in UK law. ”

Depends what you think is the effect of the ECA in UK law. If is merely a conduit through which travel such EU law rights and obligations as may from time to time exist, then the Art 50 notification changes nothing. ECA remains that conduit – only after 2 years nothing will travel along it.
So you have to argue that the ECA is more than a conduit.
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  Richard Allen on November 16, 2016 at 10:10 am
  Reply
  
  Read the Judgment. There are category (iii) rights that cannot be duplicated in UK law one of them is the right to have the interpretation of EU law dealt with by the CJEU. Not all those who go to the CJEU are pro-the EU. David Davis is currently using this right which he wants to terminate for others.
  - 10
    
    Adam Fouracre on November 22, 2016 at 1:58 am
    
    If it can’t be replicated by UK law, it can’t be created by UK law.
  - 11
    
    Richard Allen on November 22, 2016 at 2:37 pm
    
    Twaddle…the reason it can’t be replicated in UK law is because all the other member states and the commission can comment on cases at the CJEU. That means a Member State acting illegally is subject to examination by all the other Member States. You could not replicate that in a domestic court. You would end up where a breach of EU law that was carried out illegally by the UK Government would be ruled on by The UK Government. Why do you think David Davis is pursuing a case at the CJEU right now ?
  - 12
    
    thefouracre on November 22, 2016 at 3:35 pm
    
    The right to a CJEU reference is not a product of Section 3(1) ECA 1972. Absent Article 267 TFEU, it wouldn’t matter jack what Parliament had to say. It can legislate all it wants.
    
    It’s not in the power of Parliament to create the Article 267 TFEU right, its in the power of all the member states of the European Union, and in the case of the UK, the Crown exercising its prerogative to make or unmake treaties.
    
    The idea that Section 3(1) provides a separate enforceable right that can be relied upon in the absence of the treaties is codswallop.
    
    Therefore, Section 3(1) is not creating or conferring a right – it’s a statutory gloss of Article 267.
  - 13
    
    Richard Allen on November 22, 2016 at 9:55 pm
    
    You are looking at the wrong part of the Act. The rights granted to citizens of the EU were adopted into UK law and became rights under UK law as a result.
    
    General implementation of Treaties.
    
    (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for 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 shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression [“enforceable EU right”] and similar expressions shall be read as referring to one to which this subsection applies.
    
    So that includes the right for an individual in the UK to seek a reference under Article 267… until that right is removed. Parliament is at liberty to remove it which is why a replacement Act is required. All of this would be subject to legitimate expectation i.e. it could not be applied retroactively. Obviously you cannot rely on the CJEU after the UK leaves the EU which is why the reference to the CJEU cannot be replicated in UK law.
  - 14
    
    Mike Fearon on November 23, 2016 at 11:43 am
    
    “The right for an individual to seek a reference……….until that right is removed”. I don’t think any contributor to this blog has addressed the issue of how this right, or others, are removed by a withdrawal from the Union and the Treaties. The 1972 Act makes rights “arising from time to time” under the Treaties enforceable in the UK, but does not specify that those rights fall away when the Treaties cease to apply. This applies to all rights which arise up to the date of withdrawal, and may include references to the CJEU after withdrawal, when the Treaties “will cease to apply”, in relation to rights extant at the date of withdrawal, so long as the CJEU will hear them. This may be part of the “future framework” although subject of course to a financial contribution. In any event, it is not the UK which causes the rights to fall away, unless or until the 1972 Act is repealed.
    
    This point is at one with the right to vote in European elections, which does not fall away on withdrawal. It is a right arising from UK legislation, which remains until the relevant legislation is repealed. In practice, of course, the EU will not organise elections in the UK after withdrawal, but that is not a decision of the U.K. There are parallels with freedom of movement, and both of these issues have to some extent been addressed in these blog pages. There is a distinction between rights being frustrated and rights being removed.
    
    I will no doubt be accused of sophistry here, but it is an essential part of the judicial process to ascertain the reach of the law. The current assumptions may not withstand the test of the Supreme Court. “Eliding” Is the word of the moment, and it seems appropriate in relation to the way this issue is viewed in this blog. It is tied in with that of what the Point of the “Great Repeal Act” is, again ignored, perhaps because of the “Great Assumption” that rights are removed when nothing appears to specify that they are.
  - 15
    
    Richard Allen on November 23, 2016 at 12:45 pm
    
    Both sides in the JR agreed that the right to seek a reference to the CJEU would be lost indeed the Secretary of State accepts this fact. You suggest it would not be. If that if the case then there is no issue. If it is lost however that is clearly something that the courts and Parliament will have to address.
  - 16
    
    thefouracre on November 23, 2016 at 10:49 am
    
    “from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties”
    
    “to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly”
    
    All past participles, all presuppose a right exists, none suggest the creation of new statutory rights. How can something be given legal effect (e.g. a right), recognised, available in law, enforced, allowed and followed, if it does not exist? under Section 3(2) – how can you take judicial notice of something that doesn’t exist?
    
    “Parliament is at liberty to remove it which is why a replacement Act is required.” – I respectfully disagree. Section 2(1) does not create or confer rights, its repeal also does not extinguish rights. It removes cognisance, enforceability and justiciability of international law and its concomitant obligations and rights.
    
    The rights can’t be enforced in domestic courts absent the ECA 1972, but they do exist under the Treaties, and repealing the ECA 1972 will not extinguish them. Withdrawing from the Treaties will.
    
    See Paragraph 66 of Miller: “Although these are not rights enforceable in the national courts of the United Kingdom, they are nonetheless rights of major importance created by Parliament.”
    
    The court has fundamentally erred – the rights are not created by Parliament. However, from the phrase “Although these are not rights enforceable in the national courts of the United Kingdom” we can infer that the court must have realised and understood that these rights exist absent the ECA 1972.
    
    Lord Atkin in Attorney-General for Canada v Attorney-General for Ontario [1937] UKPC 6:
    
    “but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default…The question is not how is the obligation formed, that is the function of the executive: but how is the obligation to be performed and that depends upon the authority of the competent legislature…”
    
    R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg (“Rees-Mogg”) as per LJ Lloyd [1994] QB 552 Page 567:-
    
    “It is axiomatic that Parliament alone can change the law. Mr. Pannick accepts, of course, that treaties are not self-executing. They create rights and obligations on the international plane, not on the domestic plane.”
    
    Validated at Paragraph 44 of the Miller Judgment:
    
    “If this legislation had not first been put in place, ratification of the Treaties by the Crown would immediately have resulted in the United Kingdom being in breach of its obligations under them, by reason of the absence of provision for direct effect of EU law in domestic law.”
    
    The court also incidentally overstated the ratio of Ex Parte Fire Brigades Union at paragraph 99 of its judgment the essence of which is not that Parliament would have legislated in vain. As per Lord Berwick, page 572:
    
    “It is the decision of the Home Secretary to renounce the statutory scheme, and to surrender his power to implement it, which constitutes the abuse of power in the present case, not the substitution of an interim measure.”
    
    In other words, the surrender of a prerogative power conferred by statute to implement provisions under the Criminal Justice Act 1988 constituted an abuse of prerogative power. The present case is entirely different.
  - 17
    
    Richard Allen on November 23, 2016 at 12:18 pm
    
    You are applying Anglo Saxon logic to Roman law.
  - 18
    
    Richard Allen on November 23, 2016 at 12:20 pm
    
    Next you will be telling me that all EU VAT law doesn’t exist. Your argument is gobbledegook. Read Van Gend en Loos and Frankovich.
  - 19
    
    thefouracre on November 23, 2016 at 5:10 pm
    
    “Read Van Gend en Loos and Frankovich.” – this can only provide interpretive assistance in relation to the Treaties. They cannot provide assistance in relation to the Constitutional understanding of how the Treaties are given effect in the United Kingdom.
  - 20
    
    Richard Allen on November 25, 2016 at 11:29 am
    
    Lets leave that to the Court shall we
21

Alessandra Asteriti on November 15, 2016 at 3:04 pm
Reply

Very interesting, thanks. Why no mention though of the so-called ‘Great Repeal Act’ (GRA)? (so called because in reality, contextually to repealing the ECA, it embeds EU law in UK law). I thought that its purpose was precisely to decouple the notification of withdrawal from the disappearance of EU rights from UK law, regardless of irrevocability. How can one argue that article 50 inevitably leads to loss of these rights, if the effect of the GRA is to embed these rights in UK law? It seems to me, the only loss is in the ‘from time to time’ provision, i.e., article 50 effectively closes down the conduit that allows EU rights to enter the body of UK law as they are implemented from time to time, and this is the only irrevocable part.

So the argument really is that the UK government does not have the power to renounce an international treaty tout-court, or maybe, the EU treaties alone, but not because to do so would estinguish EU rights (as they would just be converted into 100% domestic rights, subject to subsequent amendment, modification or repeal like all other UK laws) but because the EU legal system is so special as not to respond to the general rules of international law and UK constitutional law with respect to international law. So the non revocability of article 50 would be relevant only on the much narrower grounds of allowing the UK to leave the EU, but surely, if we accept that the referendum had a particuarly poignant significance, the use of the royal prerogative by the government is in compliance, and not inb conflict with the results of it. And if EU rights’ existence in UK law is guaranteed, via the GRA, what exactly is parliament defending?

Having said all this, is this just academic, because the GRA has not been yet included in the Queen’s Speech, and will its possible effects be relevant once it has? I ask this as a non-constitutional law expert.
- 22
  
  Mike Fearon on November 15, 2016 at 4:21 pm
  Reply
  
  I have wondered aloud previously in this forum why we have a proposal for a Great Reform Act at all. It depends on how you see the application of the ECA after withdrawal. I see no reason why any rights which have arisen up to the day withdrawal takes effect should not be available and enforceable in UK law after withdrawal. The ECA contains no provision to the contrary.
  
  The U.K. Courts already enforce direct effects of EU legislation, for example prior to the coming into force of UK regulations implementing those rights, with reference to CJEU rulings as appropriate. Even if the UK has not implemented EU Directives, they still have legal force. If the UK wishes to change anything, it can do so through normal legal processes. Why wrap it all up in one huge and cumbersome piece of legislation?
  
  Nobody seemed to leap at the chance to address this point when I raised it previously. Perhaps this time wil be different.
23

spinninghugo on November 15, 2016 at 3:09 pm
Reply

The error in this piece is at the start

“as the actual effect of Article 50 notification would be to trigger a 2 year timeline at the end of which the UK would cease to be an EU member state (unless extended by unanimity of all EU Council members) triggering Article 50 in fact nullifies the effect of the ECA in UK law”

No.

Section 2 of the ECA incorporates into UK law EU law as it applies to the UK ‘from time to time”.

As EU law changes, so it changes as incorporated into UK law.

If by its terms EU law were reduced to a banana curvature directive, would that mean that a fresh UK statute would be required?

Obviously not, s 2 of the ECA would say that that is all that is incorporated.

if EU law as it applies to the UK is “nothing” does that require a fresh Act? no, the ECA itself then says that the applicable law as incorporated into UK law is nothing.

So the ECA is not being ‘nullified’ or ‘overturned’ by art 50 being invoked. On the contrary, it is the ECA *itself* that gives effect in UK domestic law to the non-application of EU law to the UK at the international level.
- 24
  
  sigtryggr on November 15, 2016 at 4:00 pm
  Reply
  
  “If by its terms EU law were reduced to a banana curvature directive, would that mean that a fresh UK statute would be required?
  
  Obviously not, s 2 of the ECA would say that that is all that is incorporated.”
  
  A change to EU law of that magnitude would require the EU treaties to be amended or replaced per s 2(1) of the EU Act 2011. So again, Parliamentary approval would be required before individuals were deprived of rights laid down by the ECA.
  - 25
    
    spinninghugo on November 15, 2016 at 5:20 pm
    
    Agreed that such a major change would require a a fresh treaty, though many other reductions in rights arising under EU law do not. My point was rather than s 2 incorporates whatever EU law says the rights etc applicable to the UK overtime may be. These may increase or decrease overtime. No fresh legislation is required where such rights are lost under EU law itself for UK domestic law to give effect to such reduction.
    
    The point about Art 50 is that it is already part of EU law, and so no fresh parliamentary approval is required.
- 26
  
  Sam Varadi on November 16, 2016 at 6:47 am
  Reply
  
  What you argue is that because EU rights are created only on the international plane, there is no need for Parliament to have a voice on their abolition (as far as the UK is concerned). But you’re missing the point. The whole argument here is that EU rights are created BOTH on the international plane (as a matter of EU and international law) and, through the ECA, at national level too (as a matter of national law). It’s all in the same parcel. That’s the nature of EU law, it’s not just about States, it’s about people, it’s not just international law, it’s national law.
  Finnis doesn’t get this so you’re in good company, but the High Court did get it
  - 27
    
    spinninghugo on November 16, 2016 at 9:17 am
    
    I am puzlzled as to how you could possibly have read me as saying anything so ridiculous, when the first thing I said was
    
    “Section 2 of the ECA incorporates into UK law EU law as it applies to the UK ‘from time to time”.”
28

spinninghugo on November 15, 2016 at 3:15 pm
Reply

“EU treaties do create individual rights.

Dear oh dear.

No they don’t.

Imagine we had the EU treaties but no ECA (or equivalent in other member states)

What individual rights are created by the agreements by way of treaty between member states?

The correct answer is “none”. The Treaties create rights/duties between states, which are then incorporated into domestic law(s), creating further rights in non-state parties.

It *looks* like rights are created in favour of non-state parties because the agreements *require* states to create rights for individuals (both from their own state and elsewhere). But the treaties *themselves* do not create these rights.
29

spinninghugo on November 15, 2016 at 3:22 pm
Reply

“EU law is, according to the Court of Justice in van Gend en Loos, a ‘new legal order’ which gives individuals directly effective, enforceable rights which become part of their national legal heritage. ”

Again, the fallacy in this logic is apparent on its face.

If we have two legal systems X and Y, rights created under system X may give rise to rights under legal system Y. What conditions need to be satisfied for this to be true?

First legal system X must say there are such rights. Second legal system Y must say such rights are incorporated. Both must be satisfied. is it enough if legal system X, alone, says “these rights are directly enforceable and effective in legal system Y” for that to be true?

Clearly not.

So, taking a far-fetched example, if in van Gend en Loos the CJEU had said EU rights are valid in the law of the USA, would that make it so? Obviously not.

So why are EU rights “directly effective” in the UK? Is it enough to say “because the CJEU says so? Obviously not. They are so effective because the CJEU says so AND s 2 of the ECA incorporates such rights. It is simply a logical impossibility for UK law to be anything other than what UK law says it is.

The importance of this is that Finnis analogy with tax statutes is not refuted. EU law is not a magical new thing under the sun as is claimed.
30

spinninghugo on November 15, 2016 at 3:26 pm
Reply

“Repeal or elimination of rights in the EU treaties would have to be by treaty amendment, a serious enough repeal to require approval by the UK Parliament”

Again, this is nonsense. The suggestion is that rights created by the EU are a one way ratchet: once rights are created under EU law and thereby given effect into UK law, some fresh legislation would be required to remove them.

So, what would happen if, say, the EU Regulation on air passenger rights were withdrawn by the EU itself. Would that removal of rights that exist in the UK require fresh legislation domestically?

Obviously not. s 2 of the ECA incorporates such rights as exist from time to time. If they are added to, that is given effect to, and so it is if they are taken away: as they will be by art 50.
- 31
  
  Alessandra Asteriti on November 15, 2016 at 3:37 pm
  Reply
  
  Sorry to intervene, but do you think that your anonymity allows you to be so rude?
  I have the mail box inundated by rude messages, and even if I am not the recipient, I feel compelled to reply; can we not keep the debate more civilised?
  Thanks.
  - 32
    
    spinninghugo on November 15, 2016 at 3:40 pm
    
    Completely fair, and I apologise if too strongly expressed.
- 33
  
  sigtryggr on November 15, 2016 at 4:11 pm
  Reply
  
  When the EU repeals a Regulation this is done entirely in accordance with the Treaties listed in s 1(2) of the ECA. Parliament has enacted those Treaties in UK law. Their scope constantly changes in accordance with the decisions of the CJEU and as EU legislation is added and removed.
  
  The effect of Art 50 is not to change the scope of the Treaties. It is to withdraw us from them altogether.
  
  Such a reading of s 2(1) is entirely tenable for the very many reasons the HC set out in para 93 of Miller.
  - 34
    
    spinninghugo on November 15, 2016 at 5:13 pm
    
    Nope. There is no logical distinction between
    
    (i) the rights applicable to the UK under EU law being almost nothing (one single Banana Curvature Directive)
    
    and
    
    (ii) the rights applicable to the UK under EU law being nothing at all.
    
    If under EU law itself it no longer applies to the UK, s 2 of the ECA gives effect to that in Uk domestic law, just as it does to any other reduction in its application.
- 35
  
  Richard Allen on November 15, 2016 at 8:24 pm
  Reply
  
  Member States can have any legislation they wish as long as it does not conflict with Directly effective EU legislation so to answer your question if the EU withdrew legislation that was transposed into UK law that legislation would indeed stay in place until it was withdrawn domestically and it would be valid until it was withdrawn (unless it conflicted with new EU law). Your example is of course ridiculous because the EU would not just chop out rights. They would create transitional measures which is the point that appears to be lost on you with regards to Parliament having a say on Article 50…quite simply Parliament would have to properly consider transitional measures before triggering Article 50 and severing rights. So whilst the Brexit zealots seem to want to reach some kind of desperate ‘climax’ at all costs by triggering Article 50 and satisfying their frustrations the courts are thankfully more level headed about the impact of leaving the EU on all those who might be negatively affected in ways you may not even have thought of.
  - 36
    
    spinninghugo on November 16, 2016 at 9:26 am
    
    It is true to say that rights that have been created by UK legislation that are freestanding of our membership of the EU stay in place regardless of what EU law is.
    
    So an example is the Consumer Protection Act, which is the result of directive 85/374. That survives regardless of our membership of the EU (until repealed by the UK legislature).
    
    Rights that are directly effective in the UK without more are emphatically not of this kind. They are only effective in UK *because of* s 2 of the ECA. All such rights under EU law are now contingent on art 50 not being invoked (and 2 years passing). Once they cease to apply at the EU level, they cease to apply at the domestic level: because of the dual operation.
    
    It is interesting to discover that some people really do believe in the one way ratchet model of EU rights.
  - 37
    
    Richard Allen on November 16, 2016 at 10:08 am
    
    It is preciously because directly effective rights are terminated (and some of them cannot be duplicated in UK law) that Parliament needs to deal with this to ensure those affected have some kind of remedy (see the 1688 Bill of Rights) . Not all those using the CJEU for example are pro-the EU. They are just defending their rights within the existing legal framework. David Davis should know this as he is currently involved in a case at the CJEU.
  - 38
    
    spinninghugo on November 16, 2016 at 11:53 am
    
    But if this really does all violate the 1688 Bill of Rights, why doesn’t the loss of any rights under EU law that are directly effective also so infringe basic constitutional principle?
    
    Or are you claiming EU law is a one way ramp: it can create rights but once it has they are inviolable?
  - 39
    
    Richard Allen on November 16, 2016 at 5:17 pm
    
    No I am not saying rights cannot be removed but in order for them to be removed they have to go through Parliament and be properly considered. Parliament provides the safeguards. Royal prerogative does not.
  - 40
    
    spinninghugo on November 17, 2016 at 8:51 am
    
    Yes. So, you think they can be created in UK law without an Act of Parliament because EU law says so, but the same rights cannot be removed in UK law without an Act even if EU law says so.
    
    That isn’t right.
41

Alessandra Asteriti on November 15, 2016 at 3:43 pm
Reply

We are all a bit ‘Trumped’ these days… apologies accepted!
42

spinninghugo on November 15, 2016 at 3:48 pm
Reply

“it is undeniable that the European Parliamentary Elections Act 2002 does provide statutory rights, and so is in no sense comparable to the double taxation relief treaties to which Finnis makes reference. Section 8 of this Act states that ‘(1) A person is entitled to vote as an elector at an election to the European Parliament in an electoral region if he is within any of subsections (2) to (5).’ ”

First Finnis doesn’t rely upon the tax statute analogy to deal with rights created other than by the ECA.

Second the explanation here is, as he says, that the European Parliamentary Elections Act 2002 is contingent on their being elections to the European Parliament that the UK is entitled to send MEPs to. If, for example, all the other member states decided to dissolve the EU, would that mean we would require legislation to overturn the 2002 Act? Obviously not. The legislation is contingent: there must be MEPs under EU law required before it operates. If there are none, it doesn’t.
43

Sean Feeney on November 15, 2016 at 3:52 pm
Reply

I find Spinning Hugo’s emphatically expressed anonymous contribution hilarious – especially as he is a very strong supporter of Professor Finnis’s argument, which has received some very interesting recent critque.
- 44
  
  spinninghugo on November 15, 2016 at 5:09 pm
  Reply
  
  Laugh long and hard would be my advice.
  
  While you can.
45

Rodger Harris on November 15, 2016 at 4:14 pm
Reply

Lord Cooper’s statement stands on its own and needs no further comment. To trespass on the independent Constitution of Scotland is not an act to be undertaken lightly.
But no “Decision” has been made according the constitutional law of the United Kingdom or any of its constituent parts. Where is it, or in what is it framed?
Has the government made a written decision tabled to both Houses of Parliament in a solemn form that by exercise of the Royal prerogative or any other means vested in it that it has decided to leave the European Union, or that it considers that the Referendum, combined with the undertaking of the Prime Minister that the Referendum result would be respected is sufficient to constitute an unwritten decision which it is reducing to written form by the tabled statement?
How would such a Decision be evidenced in a form sufficient for notice to the Council of Ministers of the European Union? Form is at least two thirds of the issue.
Short of requesting her Majesty to descend to Parliament and address the Houses to the effect that the Decision has been taken I am not sure what “form” is available to cover the various assertions as to what is unwritten that have been produced.
The debate itself without a written decision in a solemnised form is entirely sterile.
The ability of the British Islands to concentrate uniquely on their insularity without regard to the fact that they merit respect world-wide is rendering the entire issue undignified. That lack of dignity has its effect on an international basis as literally no one will treat anything as serious if it has no form. Sovereignty has the facet of a degree of secular dignity and form which is being forgotten..
The point is rather that the constitutional relationships with the remainder of the islands and territories concerned by a unilateral, not multi-lateral decision of this type would not tolerate such a modernist approach in rank defiance of the conventions and laws governing these relationships.
As the Queen is the Sovereign in right over these territories might not such a carefully worded statement of similar rank to the Queen’s Speech suffice as a Decision with sufficient reference to the sadly neglected Privy Council to square the otherwise distinctly uncircular circle as to Constitutional links between the various nations and territories concerned.
This is a serious point. Upon whose head are these Crowns in right anyway?
- 46
  
  Mike Fearon on November 16, 2016 at 1:26 am
  Reply
  
  I think what we have here is a finely balanced political game. I have suggested elsewhere in this forum that Parliament can take responsibility for the notification, if it wishes so to do, through as simple a mechanism as an early day motion (EDM) in the lower house. To do so it has to confirm that the decision to withdraw from the Union has been made, as the government argues it has, through the referendum Act, the referendum, and the approval of the EDM. Having confirmed that, the Commons (personally I would discount the Lords) is obliged to authorise notification in accordance with Article 50 (2), and the legal profession can get a well deserved night of peaceful slumber.
  
  The difficulty is that if an EDM is introduced, the government risks being held to ransom over the conduct of negotiations. MPs do not have to confirm anything, and a refusal to agree that the UK has decided to withdraw does not attract the same degree of approbation as would a decision to remain. It suits some, perhaps many MPs, to allow a state of uncertainty to continue, in the hope that withdrawal will be avoided, or delayed as long as possible with a result which is nominal rather than substantial. The result is the current political vacuum which the Courts have been invited to fill, and a lengthy, and sometimes heated, debate around a myriad of possible legal obstacles and routes around them. Whilst the debate is helpful in clarifying many issues around BREXIT, the political manoeuvring is not an edifying spectacle.
  
  I think it may be helpful if the Supreme Court focuses on the issue of the decision, rather than the notification, assuming that the issue gets that far without being resolved,as it really should be, by Parliament. I agree that the decision should be formalised, but I do not envy the Ministers responsible, or indeed the government as a whole, their task in achieving that. They may be well advised, if they favour an EDM, to bite the bullet and try to get a carefully formulated motion approved before the SC hearing. It would have to be very carefully formulated and handled, but in my view it is better that Parliament should cater for its own dirty linen, rather than bag it up and present it to the Supreme Court.
47

Richard Allen on November 15, 2016 at 8:10 pm
Reply

“Should lawyers be so zealous in elucidating arguments that make it easier for government to override rights?” As someone who is currently exercising one of those rights as a result of Government malfeasance the answer must be no simply because if the answer is yes then we live in very dangerous times. Its a simple choice.
48

Brexit and All That (@BREXIT_allthat) on November 15, 2016 at 10:45 pm
Reply

What is missing in all this debate is that there is no real questioning of the view that the Referendum has to be treated as “advisory” We have an unwritten flexible Constitution based as much as anything on Comnvention and so far every Referendum has been carried into effect therefore I would argue that we have a Constitutional Convention that Parliament and Government will carry Referendums into effect. Looked at from that perspective this litigation, the Miller decision and the frankly appalling speech by Lady Hale carries a real danger of bringing the rule of law into disrepute.
- 49
  
  Richard Allen on November 16, 2016 at 9:51 am
  Reply
  
  So if Screaming Lord Sutch had obtained a seat in the House of Commons he would have been bound in law by the Brexit referendum ? Piffle.The Government is not Parliament. Parliament cannot be bound by anything. That is the fundamental flaw in your understanding.
  - 50
    
    Brexit and All That (@BREXIT_allthat) on November 16, 2016 at 2:29 pm
    
    No your reply shows that the fundamental flaw in our Constitutional thinking, as reflected in this Blog, is that we haven`t reaaly considered whether we have created a new Constitutional reality that Referendums are binding not advisory
  - 51
    
    Richard Allen on November 16, 2016 at 5:14 pm
    
    We haven’t. To run a country based on a fiasco like that would be insane.
  - 52
    
    Richard Allen on November 16, 2016 at 5:15 pm
    
    You propose that we run the country through facebook ?
- 53
  
  Chris V on November 16, 2016 at 1:37 pm
  Reply
  
  I am not sure that whether the referendum was advisory or not helps much. Neither claimants nor defendant sought to argue that the decision would not be honoured. The issue is the means of meeting our constitutional requirements. Royal prerogative would remove category 3 rights – to vote for or stand as an MEP – contrary to established constitutional law that royal prerogative may not remove statutory or common law rights. So it must be Parliament that must trigger article 50. That is the contention the SC must decide, if I can compress the argument to one point for simplicity.
  
  What MPs decide to do is not a matter for the courts. The referendum is advisory simply because it has been phrased the way it has. Contrast that with the AV referendum that included the specific legislation that would follow in the event of a “Yes” vote.
  
  The arguments about what MPs should or should not do, and whether voting against triggering article 50 ever, thereby effectively choosing to ignore the result of the referendum is acceptable, are not, it seems to me, matters for the courts. Voters will decide through political means if MPs have behaved appropriately. Few MPs and few members of the House of Lords have indicated that they will not vote to trigger article 50.
  
  I think we should let the narrow legal matter be settled by the courts. We are becoming exercised over a decision on which of two ways article 50 will be triggered. It’s “how” not “whether”. Parliament has already put in place scrutiny arrangements and I suspect the government will find it hard to avoid disclosing information that will in any event be made available to the EU Parliament under their much more open arrangements.
  
  Only those without an ironic bone in their body can find the arguments from the government less than completely ridiculous. In referendum with one of the key issues being Parliamentary sovereignty, it is beyond bizarre that the first major argument is about the executive’s attempt to preclude Parliament from having its say.
  - 54
    
    Richard Allen on November 16, 2016 at 10:04 pm
    
    Well put. I’m surprised that such a simple point has been dragged out in tedious detail by those desperate to inflate this court Judgment into some kind of travesty of democracy..which it clearly is not. It makes you wonder if many of those persisting with these inflammatory arguments have actually read it.
- 55
  
  Rodger Harris on November 16, 2016 at 2:18 pm
  Reply
  
  What is missing is a semblance of intellectual honesty. The Referendum was enacted by Parliament on an advisory basis, there is absolutely no room for gainsaying that. Your should check your facts first rather than attempting to undo reality for the sake of opening a sterile and inflammatory debate.
  The Parliamentary convention was very adequately summed up in the MP briefings which outlined the differences between an advisory and a mandatory referendum.
  The convention which your are attempting to argue exists and already distinguishes between mandatory and advisory referenda.
  Please see the Briefing notes available of the relevant website.
  I am therefore giving you the advantage of ignorance and will forbear from comment on the use of the adjective appalling.
  - 56
    
    Neil Addison on November 17, 2016 at 6:54 pm
    
    Thank you for your unnecessarily unpleasant and personal response. I am not ignorant nor would I accuse anyone else of ignorance where they comment on this Blog. All of us I believe regard this subject as important and are exchanging views and opinions in a courteous manner. Regarding my reference to Lady Hales appalling speech, I regard it as appalling that any Judge should enter into a public discourse about a Case which is due to come before her and where she has not yet heard or read the arguments. The principle of Judicial independence is a precious one but it behoves Judges to avoid doing anything which might call their independence or impartiality into questionm
  - 57
    
    Richard Allen on November 17, 2016 at 10:54 pm
    
    Anyone with the slightest understanding of the legal issues will know that Lady Hale was just stating the obvious.
  - 58
    
    Rodger Harris on November 18, 2016 at 11:55 am
    
    If you are now attempting to render the discussion normal, may I suggest, without offending our Scottish friends, that you factually remove the term “appalling” as “populistic”. You are in danger of falling into the same trap into which Farage is currently attempting to draw the overall issue.
    To recount, Lady Hale is perfectly aware of the Common law as being the Bulwark of our legal order. See Ingenious. It is therefore “constitutional”.
    What she is saying in effect is that the notion of Parliamentary Sovereignty in the United Kingdom, as such is far wider in its constitutional effect than elsewhere. Our constitutional structure, whilst efficient, is different.
    Lady Hale is from a University and academic background, brought in to widen the extent of the Judicial background at the Supreme Court. She is therefore more open than her peers.
    What I believe she does underestimate is the degree to which the Crown as such, in fact is the well of unallocated constitutional rule. By that I mean that the Courts, they are HM judiciary, have a fundamental role as custodians of the common law, as opposed to statute. She hints at this. Her rôle at that lecture was to give an outline of the constitutional position within the United Kingdom, and she did not overcook the Brexit issue at all, she in fact avoided it to the best of her ability and made it quite clear that she was abstaining from any real comment upon it. Is she to ignore the Miller case entirely in such a speech?
    To the extent at the Common Law is and remains constitutional, the Judiciary’s role is to protect it and stand by it to ensure the judicial maintenance of the common law, and not its erosion.
    It can only be changed by Parliament by express act. In other words Parliament is subject to similar constitutional restrictions as those which it itself had imposed upon the Crown Prerogative in its infancy. The restrictions on the Royal Prerogative over the common law and by necessary inference over Acts of Parliament were confirmed by Coke very early on. Parliament is part of the “Crown” by virtue of its designation as the Queen in Parliament. We are no longer governed by the regal phrase at the start of each Act ‘Govern yourselves accordingly’. There has been a change, with that change came responsibility. That responsibility is checked by judicial review ex prerogative writs which includes whether Parliament actually enabled Government to do what Government is attempting to do. The Government being that whose animi sit in Parliament and have legislation passed. Hence the issue with populism as opposed to Parliamentary sovereignty
    What is more there used to be a Constitutional verification mechanism prior to the statutory creation of the Supreme Court, the Privy Council which used to advise the Crown, as to constitutionality. That has become residual. However the Judicial Committee of the Privy Council still has the residue of that jurisdiction which is confirmed by the fact that Devolution Claims, and those claims only, had to be transferred from the JCPC to the Supreme Court by an Act of Parliament – i.e.outside the Common law basis of jurisdiction to a statutory creation.
    Whilst Lady Hale assumes that the Associated Territories and Dependencies might not wish their appellate JCPC to be undermined by their being made responsible for a Brexit appellate judgment, hence it being better heard by the Supreme Court, It is in that area that criticisms might be better addressed. I personally agree with her conclusion, but not for the reasons she gives. If the Supreme Court deals with the appeal only the United Kingdom is involved. It has no force over the Dependencies and Territories other than persuasive.
    It is finally a United Kingdom issue; but take note that the Supreme Court is taking over where the PC used to be the mediating force over constitutional issues, such as these, and the JCPC the arbiter.
    As a practicing lawyer my views will not be the same as those of University professors and academics, who do not have to address the consequences of their theories in deciding in which jurisdiction a matter is to be heard in practice.
    General “academic” principles, worthy as they are are of no effect here.
    The Court which can hear the issue in old common law terms still affects the law as it is handed down.
    This is positioned in an academic debate, but kindly abstain from terms such as “appalling”, it is not a Student Union or Oxford Union debate. That form of Wars of the Roses politicisation and distancing from legal reality has done enough damage in the Referendum. I am neither for or against Brexit, I am merely one of the many who do not speak out who have to deal with its consequences, lawfully and hopefully logically
  - 59
    
    Richard Allen on November 18, 2016 at 2:02 pm
    
    Agree completely. The problem is these Brexit trolls get everywhere. Its almost impossible to have view on anything without them popping out of the woodwork and ranting and no amount of logic appears to shift their focus away from their narrow automaton agenda. On Question time on the BBC recently a panellist was attempting to explain how the UK constitution operates when a heckler shouted “We want Brexit” as if it was a toy that had been confiscated for bad behaviour. Someone should have written Brexit on a brick and thrown it at him…
  - 60
    
    Mike Fearon on November 18, 2016 at 8:11 am
    
    Rodger (if I may) Lady Hales may well have been stating the obvious, but an experienced judge, let alone a justice of the Supreme Court, is unlikely to make such a statement in a lecture which is bound to be widely reported, for no reason. The Law Lords, like the Divisional Court, are placed in a delicate position. Whilst they are unlikely to be intimidated by the press, they will have in mind the undesirability of having to rule on something which parliamentarians should have dealt with through their own processes. A word to the wise? A hint that the politicians need to sort this out?
    
    The idea of a three line bill has been floated. That is unlikely to happen before the SC hearing. I have suggested an Early Day Motion. There is an issue as to whether this is ruled out because the matter is before the Courts. There are political difficulties for the Government in being seen to be using a “back door” approach to a weighty matter. However, given that most MPs accept that the decision to withdraw from the EU has been made, the issue is perhaps not as contentious or weighty as it might at first appear. I have suggested here that if the decision has in fact been made, notification should not be an issue.
    
    The government may welcome the sight of a stalking horse, should one be dragged out of the woods. Is Douglas Carswell too busy? Or Gisela Stuart? Either would be well placed to push the Commons to confirm officially what many of its members have publicly stated, I.e. that the referendum may not be legally binding, but in political terms it is,de facto, accepted as such, when taken together with the Act of Parliament which authorised it.
    
    The lawyers advising the Government must surely be able to read the writing on the wall here. The legal debate and the Court hearings are fascinating, but almost certain to be sterile in effect. A parliamentary resolution accepting the Government position on the decision, in advance of the SC hearing, may of more practical benefit than either. Alternatively, Parliament should be brave enough to respond to an EDM by voting to remain in the EU. Hiding behind the Courts is not the answer.
  - 61
    
    Richard Allen on November 18, 2016 at 9:14 am
    
    You appear to have completely misunderstood the Miller case. Its not about leaving the EU. Its about the rights of those who are affected by the removal of legislation and making sure due consideration is given in an appropriate forum…which is Parliament.
  - 62
    
    Mike Fearon on November 18, 2016 at 2:34 pm
    
    Richard you might want to read my comment in the light of previous contributions. My original point was based on the analysis of Phillip Allott, which highlighted the clear distinction between the decision and the notification. If the decision has ben made, the European Council must be notified. That is an obligation, not a choice. Whether the decision is notified by the Executive or by “Crown in Parliament” is of little consequence if any. Loss of rights flow from the decision, not from the notification. The Divisional Court took the view that “nothing turns” on the issue of whether the dispute is about the decision or the notification, but that issue may yet resurface.
  - 63
    
    Richard Allen on November 18, 2016 at 8:08 pm
    
    A decision…. I don’t think anyone could call that fiasco of a ‘referendum’ a ‘decision’. We seem to be going in circles since even MPs were told it was not a decision (and was a consultation) before they even went ahead with it (see Parliamentary Library research briefing from 2015) but as usual the cowards are unable to own up to that. If anything this entire episode has shown just how much ignorance and stupidity there is in this country which is I suppose a result of sorts.
  - 64
    
    Sean Feeney on November 19, 2016 at 12:14 pm
    
    I agree that Lady Hale was stupid to risk accusations of apparent bias in commenting in a case she is intended to sit on.
    
    Her concluded view that the “referendum was not legally binding on Parliament” may arise obiter if the question of how a statutory decision in a referendum can be superseded without a further referendum.
    
    I think there is absolutely no risk that Lady Hale will be biased. That would be to conclude she will be more motivated by defending her public statements than deciding the interesting legal questions that arise.
    
    The Supreme Court will rule on the “constitutional requirements” of the UK. My strong view is it should sit en banc as the Supreme Court has exclusive jurisdiction to settle the legal questions.
65

Brexit and All That (@BREXIT_allthat) on November 18, 2016 at 10:06 am
Reply

Richard Please do not assume that those disagreeing with Lady Hale do not understand the legal issues. The point that is being raised is that Lady Hale should not have been talking publicly about this issue at all, it is a Case which is coming before her as a Judge and she acted injudiciously and foolishly by talking about it even in a Speech in Kuala Lumpar. It was not a speech about academic law it was a speech about a live legal issue in which she is involved
- 66
  
  Richard Allen on November 18, 2016 at 1:55 pm
  Reply
  
  That appears to be a matter of debate…
67

Mikolaj Barczentewicz: Consequences of the High Court’s Reasoning in the Article 50 Judgment: EU Law-making Unlawful | UK Constitutional Law Association on November 18, 2016 at 2:01 pm
Reply

[…] withdrawing from a double-taxation treaty and withdrawing from the EU Treaties. However, some may have a worry that the analogy fails because EU law has a sufficiently special status in UK law or for […]
68

Brexit and All That (@BREXIT_allthat) on November 18, 2016 at 4:56 pm
Reply

Richard I am not a Brexit Troll as you put it and the “ranting” appears to be restricted to you. As a practicising lawyer I regard it as improper for any Judge to publicly comment in advicnce on a case in which they are due to sit. If you feel that I should not have used the word “aapalling” then I am quite happy to change it to “stupid”, “illadvised” “injudicious” or “improper” as you may prefer. Or could we perhasps merely confine ourselves to debating in a proper and mutually respectful way the issues raised in this and similar articles
- 69
  
  Mike Fearon on November 18, 2016 at 5:39 pm
  Reply
  
  Nicely put Bexit and all that. I may not understand the legal issues as well as most, but I can learn from the debate, and hopefully learn better by participating as best I can. Most contributors seem quite understanding and helpful.
  
  I didn’t know Lady Hales’ background, and misunderstood the likely significance of her remarks. They are more understandable as an indiscretion now that I do, and I clearly got out of hand with my conspiracy theory, I live and learn and, whilst I may have been accused of sophistry in the past, people are generally constructive, which I appreciate.
70

Richard Allen on November 18, 2016 at 8:07 pm
Reply

I apologise for wrongly labelling you a Brexit troll although your user name didn’t help. You have a point but not everyone seems to agree. I accept it would have been better to stay silent on the issue although the Daily Mail hasn’t exactly helped and certainly in terms of the gravity of the sin I think the Daily Mail get the winning prize, hands down.
- 71
  
  Neil Addison on November 20, 2016 at 10:49 pm
  Reply
  
  I had chosen my user name “Brexit and all that” with the intention of being slightly humorous and also to give a bow to the famous, If unfortunately out of print, 1066 and all that. I hadn’t thought it implied necessarily pro- Brexit. I do regard it as an issue where there are good arguments on both sides and I do think the Government is unwise to be pursuing this case. Much better to let Parliament vote on it
  - 72
    
    Richard Allen on November 21, 2016 at 4:19 pm
    
    We agree there. I think my worry is whether or not our MPs are even capable of understanding the issues that need to be dealt with. Some don’t even seem to understand their role. This whole thing has been a real what from chaff moment…lots of chaff around.
73

Law and religion round-up – 20th November | Law & Religion UK on November 20, 2016 at 9:07 am
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[…] Douglas-Scott, UCLA blog: Miller: Why the Government Should Still Lose in the Supreme Court (Even with New Arguments): l-o-n-g piece on the forthcoming […]
74

Rodger Harris on November 21, 2016 at 12:48 pm
Reply

Perhaps, I hope with a degree of acceptable humour, I can relabel the conversation as 1066 and all that, for reason which I hope will become clear.

The assumption is that the Supreme Court has now taken over the entire jurisdiction of the Judicial Committee of the House of Lords and that that covers the issue may not be the complete answer, as it assume at the House of Lords had the jurisdiction in the first place.

Adopting the Cumberland Lodge principle that a Barrister has to question everything;

Two points which I open for researched discussion:

The Crown “Prerogative” in which the “king” acts as a delegated organ from his subjects (cf Citation of Blackstone in HMG’s footnote 5 at page 17) is not merely limited to issues of Treaty management.

The body corporate designated as the Crown also has to mediate in issues between its organs and the jurisdictions under its sovereignty,

In constitutional matters that has been the Privy Council’s domain, and the Judicial Committee of the Privy Council has always held the role of “court” for those issues. I recall here that Devolution Claims had to be expressly transferred by statute to the Supreme Court. That was a specific, not the entire jurisdiction. There is therefore far more here than meets the eye on a first sighting.

The point here is that the United Kingdom is the EU Member State, however that Member State is constitutionally compose fo several Crown “Units”.

The relationship with those Crown units has always been regulated not by the Supreme Court, but buy the JCPC.

In accepting to hear the Miller appeal, the Supreme Court may well in fact be straying outside of its allocated pasture defined by Statute into areas where it frankly has no jurisdiction at all.

The usual brushstroke of “it’s the same judges” simply does not wash,n as in certain cases it is not the same judiciary.

The JCPC is the final appellate jurisdiction not only for intra Crown UK issues, I submit, but also ad his is not an issue for submission, the final appellate court for other jurisdictions affected by the Article 50 notice, namely the Crown Dependencies. Several other jurisdictions in the Caribbean are less directly affected legally by it, but are also affected by the decision to withdraw: their relationship with the EU is governed by a Regulation, which will be emptied of its effect if not rescinded by the withdrawal when it takes place.

This is serious, and should not be treated as being a purely internal affair.

It is possible that Miller may be navigated past these waters, but the point remains.

Given the intervention of Wales and Scotland in the matter, should this not now be heard by the JCPC, or SC sitting in cohort wit and as UK JCPC in order to ensure that the correct constitutional procedures in relation to article 50 are actually followed? Article 50 may involve the appeal processes as well, although there is no actual appeal against the distinctly etherial and undefinable “decision” What is the formal “decision” in fact, as a matter of constitutional law, any ideas? It certainly is not the referendum advisory vote despite HMG’s assertion that it would be respected and implemented.

The laws of England as enunciated in passing by Blackstone have not been repealed by Parliament acting as the body politick, and Parliament certainly has no right to interfere with or repeal the jurisdiction over certain issues granted to the Privy Council which acts on behalf of the ducal crowns in question by reference to a legal position in force since, yes 1066, when the English Common law frankly did not exist is sufficient form and authority to be extended back to the Duchy of Normandy in the Channel Islands, even when John I had earned his French sobriquet of sansterre. You owe the first sovereign fiscal action known as the Doomsday book to those in charge of inter alia the Channel islands.

Sorry, I practice in the Channel Islands where the ructions caused by the referendal “advisory” decision, and the subsequent navel gazing by the UK body politick are of direct, albeit juridically indirect consequence. Do not mistake irony for acceptance of argument.

.
- 75
  
  Richard Allen on November 21, 2016 at 4:14 pm
  Reply
  
  Would that be the same Channel Islands that spent a pointless £1m trying (and failing) to overturn transparently clear EU law preventing an abusive use of import VAT exemptions whilst displaying not even the slightest understanding of the principles involved ?
  - 76
    
    Rodger Harris on November 22, 2016 at 12:38 pm
    
    Well, I believe at they were, and being a competent, French trained VAT lawyer, I am of course a little peeved that I was not briefed on the issue!
- 77
  
  Sean Feeney on November 22, 2016 at 3:55 pm
  Reply
  
  Some of the interrelations potentially raised by Rodger Harris between the Crown and Parliament and the subdivision of sovereignty between the Commons and the Lords are discursively discussed in Jackson & Ors v. Her Majesty’s Attorney General [2005] [2006] 1 AC 262:
  
  http://www.bailii.org/uk/cases/UKHL/2005/56.html
  
  Further issues of sovereignty are added to the Jackson legal and factual matrix in Miller. The Supreme Court submissions may address (in my view should address) Parliamentary reassignment of sovereignty to the devolved nations and any reassignment of sovereignty entailed by Parliament’s decision to provide for a referendum on withdrawal.
  
  Rodger Harris is also correct to raise issues of jurisdiction, as they have already been modestly raised by the High Court of England and Wales in Miller at [19]: “this court only has jurisdiction to apply the law of England and Wales”.
  
  The Privy Counsel issues raised by Rodger focus attention on the finding by the High Court of England and Wales in Miller at [16] that the relevant law is “the constitutional law of the United Kingdom”.
  
  Reconsideration of the obiter comments in Lady Hale’s speech in Jackson may be the solution the Supreme Court eventually favours, without consideration of the Crown dependency issue raised by Rodger unless they are raise by the parties or an intervener.
  
  My own modest proposal is that the 2015 Act should be construed as Parliament voluntarily giving away its own powers of high-policy decision making to the electorate specified in the 2015 Act to take the UK’s high-policy decision of withdrawal the EU.
  
  This might leave for another day the settling of the question of whether such a statutory decision-maker, with the double legitimacy of both the electorate on a binary question and of Parliament, could have its statutory decision superseded by a mere act of Parliament.
  
  My current view is supersession of such a statutory decision-maker could only be legitimated by a second Act of Parliament providing for the question of supersession of the policy to be settled in a referendum.
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Rodger Harris on November 21, 2016 at 3:25 pm
Reply

Perhaps now that Brexit and all that has confirmed his credentials, may I now edit his sobriquet to its source “1066 and all that”, an unqualified must ofr any amateur historian. The reason will become clearer lower down.

In accordance with Cumberland -not Chatham- Lodge principles, as a Barrister I am required as a mater of professional training to question everything, with a view to getting the law right if I have to take it before a given court.

One thing to get right is the Court before which you are going to plead and appeal any decision.

There is a leapfrog procedure to the Supreme Court; which in this case is intended to avoid passing by an appeal to the Court of Appeal. To the appeal “Is everybody happy?, everyone in the United Kingdom may well respond with perhaps one voice: “you bet your life we are.

Unfortunately that chorus may not be echoed by those abroad.

I put forward the following for your attention and debate:

The Governments’ argument has been published. To my mind it is well presented and takes the middle of the Prerogative Channel avoiding most of the reefs and currents on eh Channel out.
However, look at Footnote 5 at page 17. What I am going to say next is not necessarily at odds with Lord Reid in Burmah Oil cited at §38:
“5. See also Blackstone’s Commentaries on the Laws of England (….) describing the foreign affairs prerogative [not just the Treaty] as “wisely placed in a single hand by the British Constitution [Lord Neuberger please note] for the sake of unanimity, strength and dispatch” (p.292) and stating (pp.294 – 295): “With regard to foreign concerns, the KING [my emphasis is the delegate or representative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally as numerous as themselves. Unanimity must be wanting to their measures, and strength to the execution of their counsels.”

Whilst the article 50 decision has to be in a sense formalised by a decision, it has to be taken by someone vested with the prerogative to take it, unless International law has so moved on to admit anarchy in state relationships.

The points are manifold, not mere binary:

The Supreme Court has been constituted by Statute. I am not questioning whether it has taken entirely over from the Judicial Committee of the House of Lords as to the common law and the laws of the constituant states of the Union known as the United Kingdom. Which is not the British Islands. Whilst a full British national by virtue of my birth in England, I hold a British Islands passport issued by a Bailiwick, which give me full EU rights including citizenship, as opposed to a United Kingdom passport.

However what is not in the slightest bit clear is how the Supreme Court has become vested with the entire jurisdiction of the Judicial Committee of the Privy Counsel, which by definition, it cannot have been. it cannot have been. The only jurisdiction transferred fomr the JCPC to it was over Devolution Clams, which were claims by individual considered to be sufficiently close to the law of the state in question to be transferred.

Whats is not transferred is that aspect of the Privy Council’s remit from the Crown which is to advise upon and also to mediate issues going to the constitution to which Blackstone refers. That in my oveburdened submission still lies with the PC. It has not been repealed.

What is more, the Judicial Committee of the Privy Council is the equivalent of the repealed JCHL. It has not had its “mandate” to adjudicate upon the issues raised by Scotland and Wales revoked even under under CRA 2006 which only addresses Devolution claims, which affect individuals, not states! You cannot infer more into a UK statute than Parliament intended particularly here.

The argument frequently adopted is to say that the judges are he same in either case, but even if correct, that is only limited to intra UK issues, not to those addressing foreign cases, including Jersey and Guernsey whose judiciary have a right to sit.

Why, because the CDs and OCTs have the LCPC as their jurisdiction of final appeal.
Given that the Referendum was only voted upon in relation to the United Kingdom, not the CDs, there is a judicial gap looming.

To my mind the Suprele Court instead of acceding to the Leapfrog without more, should state that it is also adjudicating as the Privy Council, otherwise the Appeal hearing may not be a complete constitutional action. Are not appeals part of the internal Constitutional process which has to be completed before the remainder of article 50 is started. That Scotland and Wales have intervened may mean acceptance, but to my mind that may not be sufficient.

The King’s Privy Council and its judicial committee in case of conflict is therefore still an appropriate agent of his or her Majesty, certainly in conjunction with the other crowns in right or en droit of the CDs, the OCTs and the Commonwealth.

Why 1066 and all that? The Bailiwicks of Jersey and Guernsey were on the winning side, and reserved heir own laws and customs from the English common law, which frankly was not constituted at the time. Please bear in mind that the Doomsday book was a Norman tax collection mechanism devised to render land ownership clear, ad it was from such base that the English common law fees eventually emerged.
The CDs did not particpat in eh Referendum as that would have been to surrender sovereignty to the UK Parliament over their electoral process outside the islands’ EC and EU legislation which has been specifically adopted in those jurisdictions.

Seen from afar, the bypassing of the Privy Council, and its appellate function as to internal UK constitutional issues could be seen as unconstitutional.

Comments on this may need to be very carefully prepared as this is a fundamental constitutional facility of an international “envergure” which cannot be addressed on a mere introverted insular manner.

Perhaps signing off appalled/digruntled/disgusted Guildford might alleviate the readers’ angst !
79

Rodger Harris on November 21, 2016 at 5:19 pm
Reply

sorry for the repetition of the same points.
I thought that I had lost the first post in a glitch, but it had already been sent.
To hoist myself on my own petard
appalled/digruntled/ Guildford
80

Brexit and the Rule of Law | United Kingdom Immigration Law Blog on November 21, 2016 at 10:08 pm
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[…] event and that it was concerned with “a pure question of law”. Professor Douglas-Scott has dubbed Miller “the constitutional case of its generation” and opines that “the government should lose on […]
81

Jeff King and Nick Barber: In Defence of Miller | UK Constitutional Law Association on November 22, 2016 at 9:01 am
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[…] it has now been subject to profound and far-reaching critique: see the posts by Kieron Beal, Sionaidh Douglas-Scott, and Ewan Smith). The analogy is mistaken on at least three basic […]
82

In Defence of Miller – Britain & Europe on November 24, 2016 at 12:13 pm
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[…] it has now been subject to profound and far-reaching critique: see the posts by Kieron Beal, Sionaidh Douglas-Scott, and Ewan Smith). The analogy is mistaken on at least three basic […]
83

Rodger Harris on November 24, 2016 at 5:11 pm
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The comment from Richard Allen prompted a positive feedback, in that it led me to question how the British immigrant surge of accountants, with, if i may say so singularly half educated ideas as to VAT, has in fact also induced an assumption in the United Kingdom that in some manner the Islands are of inferior status to the English.
In that respect, HM Government has already turned to the Channel islands and the Isle of Man for assistance in how to manage a half in half out position in relation to the Internal Market, and the anti-discrimination provision in article 4 of the 3rd Protocol to the UK’s act of accession. A Treaty provision …..
It is interesting here to point out that what happened in 1972, and the Islands’ inclusions were rendered conditional on this, namely that the prior constitutional arrangement with the United Kingdom was in principle to be transposed to that which the CD’s were to enjoy, and have done so with the EU. That negotiating principle was confirmed by Sir Geoffrey Rippon, the UK EC negotiator in the Islands in 1992
When I say enjoy, I do not include the unconstitutional bullying whereby the United Kingdom Government used its own prerogative outside its constitutional restriction to put the Dependencies before a fait accompli. The United Kingdom stated to the Commission that it would without jurisdiction force the Crown dependencies, to follow its own direction in removing their non-resident company tax exclusion, of forcing them to develop a zero- rate or zero-ten tax régime . Fiscal incompetence of this nature is in fact outside the EU Treaty competence.
“Enjoyed” being therefore a trifle masochistic, in having a set of institutions dictating your economic fiscal policies without the Treaty competences or right to do so.
Curious how one Crown’s Prerogative works, here the United Kingdom’s, alone, as against others. Hence the distinctions with the Crowns in right of Canada and New Zealand….
I am therefore tempted to point out that the Statute of Westminster (the First) 1257 is written not in English but in the Norman French spoken in the Channel Islands at the time. The translation or English gloss whilst authoritative is not th statute.
The irony will not be lost on the reader. It will be the Channel Islands znf Isle of Man who may provide the United Kingdom with a precedent in its attempts at negotiation of its post-Brexit position.
Those who might wish to wax Shakespearian and lay “a Plague on’t” might recall also that that particular spent curse effectively removed the influence of the Norman nobility, along with the language, in the last Millennium.
- 84
  
  Richard Allen on November 25, 2016 at 11:32 am
  Reply
  
  My own view on the LVCR VAT debacle is that PWC saw an opportunity to fleece the Channel Islands Government…and got away with it. That case was unwinnable… I don’t think bullying came into it. I would agree that the UK should never have allowed LVCR to be abused in the first place and if anything they led the CI up the garden path and then pulled the rug from under them (or rather were ordered to pull the rug by the Commission) .
  - 85
    
    Rodger Harris on November 25, 2016 at 3:58 pm
    
    The exemption was initially in place to allow blooms to go through customs without perishing awaiting clearance.
    
    They can do no more….
  - 86
    
    Richard Allen on November 28, 2016 at 11:48 am
    
    That was the pre-paid VAT scheme in 1972 now called IVAS. LVCR was obligatory was an EU exemption and came in later (in the 80s) . LVCR was nothing to do with Flowers or CI
  - 87
    
    Rodger Harris on November 28, 2016 at 1:15 pm
    
    I do appreciate your tone, as obviously you know more about VAT than I do….. I was merely pointing out that in the Channel Islands’ case, that is what it was used for and in “tying that off” the United Kingdom High Street got its bloomers in a twist ….
  - 88
    
    Richard Allen on November 28, 2016 at 2:05 pm
    
    Have to disagree there too…most of those complaining were online retailers…who couldn’t fiddle VAT. The high street thing was a smokescreen used by CI to justify. Only saving grace for CI was it was the idiots in HMRC who allowed it all along…so where I would agree with you is that it wasn’t CI fault.. they just exploited it (without ever understanding the first thing about it…) .
  - 89
    
    Rodger Harris on November 28, 2016 at 4:40 pm
    
    Yo really do think you know everything don’t you.
    The whole point of the régime for the Channel Islands flower packers prior to the so-called fulfillment industry which you accurately describe was the Guernsey and Jersey flower exports, which were otherwise held up in customs to perish whilst VAT clearance was obtained.
    I agree with your issue as to the so-called book and DVD fulflllment industry that folded on the removal of the VAT régime, but not with your assertion that from your perspective it was a fiddle with no further explanation. Your perspective is a narrow insular one.
    Importing bouquets of cut flowers for say £10 is hardly going to bankrupt Interflora, and your High Streets are in any event overtaken by Amazon stockists based in believe it or not the Netherlands.
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    Richard Allen on November 29, 2016 at 3:03 pm
    
    I really do know everything. It was my complaint to the EU Commission and subsequent threat of infraction proceedings against the UK that closed it down. I was also a party to the 2102 JR.
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    Richard Allen on November 29, 2016 at 3:08 pm
    
    And you are wrong.. The pre-paid VAT arrangements (IVAS) allowed for rapid transit not LVCR. LVCR is an EU VAT exemption which was abused in order to avoid VAT and obtain a competitive advantage….and the evidence is there for all to see…. “where have all the flowers gone… “
  - 92
    
    Richard Allen on November 29, 2016 at 3:11 pm
    
    Oh and no books were ever fulfilled from the CI. No point…no VAT to avoid.
  - 93
    
    Rodger Harris on November 29, 2016 at 3:44 pm
    
    Sorry this is getting to irrelevant to the forum that I will not continue to respond. Books were “fulfilled” from Jersey as well.
  - 94
    
    Richard Allen on November 30, 2016 at 12:57 pm
    
    I know…its a sore point. Hope they find a good use for all that empty warehouse space.
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Gavin Phillipson: The Miller Case, Part 1: A Response to Some Criticisms | UK Constitutional Law Association on November 25, 2016 at 10:31 am
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[…] 50 is already statutory (Sionaidh Douglas-Scott essentially summarised (part of) that analysis in her recent blogpost and I do not repeat it […]
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Rodger Harris on November 28, 2016 at 1:33 pm
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Anyone up for a, article 127 EEA debate?

The UK is a contracting party in its own right and its EEA Membership therefore has to be terminated by a formal withdrawal notice, which is still HMG’s prerogative, not Parliament’s.

Whilst the UK did withdraw from EFTA, on joining the EC in 1972, as did any EFTA Member on joining the EU, it would have to reapply for EFTA Membership if it wished to deploy EFTA again.

The point is not empty as our dear Herr Schaüble has apparently gone on record that the UK population voted against remaining in the Single/Internal market, and he is inferring strongly that we cannot use the EEA relationship to remain within the EEA economy. He does have a law degree so this is a trifle surprising.

If my memory is correct, the Referendum was about leaving the EU, not the Single/Internal Market, but then how do you trust a German Minister of Finances fresh from destroying Greece to get anything correct nowadays. It might not be too disturbing were he not to have a seat in the Council by virtue of his status as a Member State Finance Minister.

I do not remember either Mssrs Cameron or Osborne making any statement on behalf of HMG that the referendum was also about EFTA Membership,

Schädenfreude is such an easy pleasure to dip into.
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  Chris V on November 29, 2016 at 6:21 pm
  Reply
  
  There is a useful article here:. https://infacts.org/eea-membership-means-transitional-deal-already-place/
  
  Brexit, the debate that keeps on giving!
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Andrew Chapman (@AndrewChapman50) on December 15, 2016 at 1:19 pm
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‘Repeal or elimination of rights in the EU treaties would have to be by treaty amendment, a serious enough repeal to require approval by the UK Parliament.’

The simplified revision procedure of Article 48(6) TEU allows the European Council to amend any or all of Part 3 TFEU, which includes the provisions on free movement for example. Parliament legislated – Article 6(1)(a) EU Amend Act 2008 – to prevent a Minister of the Crown voting in favour of such an amendment without parliamentary approval through motions in both Houses.

This rather proves that the Government would have been able to take away rights by prerogative if Parliament had not legislated in this way. As Mr Eadie pointed out in the Supreme Court (Day 1, p. 144-5), Lord Pannick’s case is that the Government could not have so acted without passing legislation. Were we therefore to suppose that the purpose of Article 6(1)(a) was to *relax* parliamentary control of the executive? Obviously not, one might think, which makes Pannick’s ‘whole thesis … difficult to maintain’ as Eadie put it.

Amazingly, Pannick did not flinch, but went for it – no doubt seeing the necessity and logic of doing so – claiming (Day 2, p. 196) that ‘Parliament’s response was to say, if the simplified amendment procedure was used, then you didn’t any longer need primary legislation to bring that change into domestic law. It was sufficient to have a motion in both Houses. But nevertheless you still needed Parliament to act and it was because Parliament thought that a motion sufficed that this change occurred.’

He did not provide any evidence, and in fact the evidence from the debate on the 2008 Act is that the Government was – as one would expect – introducing additional Parliamentary control of the executive, not weakening that control.

Andrew
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Chris V on December 15, 2016 at 6:37 pm
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“This rather proves that the Government would have been able to take away rights by prerogative if Parliament had not legislated in this way. ”

No not in the way you seem to imply. The difference is that the action would have been multilateral and within the institution of the EU and arguably a statutorily authorised exercise of prerogative. This is to be distinguished from a unilateral exercise of prerogative with no authority.
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Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association on January 25, 2017 at 9:17 am
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[…] Sionaidh Douglas-Scott: Miller: Why the Government Should Still Lose in the SC (Even with New Arguments) […]