affiliated to the International Association of Constitutional Law
Thursday 13 October 2016 marked the beginning of the hearing over the constitutional question of whether Article 50 may be triggered by the Government without further statutory authorisation. This post provides a report of the day’s proceedings. The two further days are scheduled for Monday and Tuesday next week.
The first section sets out some background information. The next section seeks to summarise the main arguments put forward by Lord Pannick QC for the Lead Claimant, Gina Miller, focusing particularly on interventions from the Bench. Following that, the gist of the arguments made by Dominic Chambers QC, for Dos Santos, will be set out before concluding with Helen Mountfield QC, for the first interveners, who had a brief opportunity to begin her submissions in the final half an hour of the first day’s hearing.
Here is a link to a transcript of proceedings. The RCJ is also to be commended for taking steps to accommodate the strong public interest in the case. There were no less than two ‘overspill’ courts which were linked by video to the hearing.
At the preliminary hearing on 19 July 2016, LJ Leveson PBQD and Justice Cranston set out the timetable for this action which allocated two days for the hearing. This later turned into three days. In particular, they considered the possibility of a ‘leap-frog’ to the Supreme Court. The purpose of this is to ensure that the litigation timetable itself cannot interfere with the political decision as to when to trigger Article 50. At the time, that meant a deadline of the end of the year and the Supreme Court is indeed scheduled to hear the case in December. The case is being heard by the Lord Chief Justice, Lord Thomas of Cwmgiedd (‘the LCJ’); the new Master of the Rolls, Sir Terence Etherton (‘the MR’), as well as Lord Justice Sales.
Counsel in the hearing are: Rhodri Thompson QC, Anneli Howard and Tom Hickman for the lead claimant, Mrs Gina Miller; Dominic Chambers QC, Jessica Simor QC, and Benjamin John for the second claimant, Mr Dos Santos; Helen Mountfield QC, Tim Johnson, Jack R Williams and John Halford of Bindmans for the Grahame Pigney set of interested parties; Patrick Green QC, Henry Warwick, Paul Skinner, Matthieu Gregoire for the George Birnie group of interveners; Manjit Gill QC, Ramby De Mello and Tony Muman for the AB set of interested parties. The Attorney General, Jeremy Wright QC, James Eadie QC, Jason Coppel QC, Tom Cross and Christopher Knight appeared for the defendant. Finally, with watching briefs, Mr Martin Chamberlain for the Scottish Government, Richard Gordon and Tom Pascoe for the Welsh Government and Conan Fagan from the Northern Ireland Bar.
The Lead Claimant’s skeleton argument can be found here. The Government skeleton argument is here. The Government’s legal grounds of resistance are here. This blog is an extremely helpful source for relevant documents in this case.
Lord Pannick QC (‘LP’)
The hearing started at 9.30am. LP began by disclaiming any political aspect to any of his arguments and suggesting that any legislation that might need to be passed if he were successful was entirely a matter for Parliament. This included any conditions, amendments, authorisations or rejection of authorisation that might be made to any prospective Bill. He also denied the relevance of EU law. He then explained the running order and the issues which each advocate would address:
Dominic Chambers QC – parliamentary sovereignty and whether a ‘decision’ has been made to withdraw from the EU.
Helen Mountfield QC – devolution points, Acts of Union and Bill of Rights 1689
Patrick Green QC – rights of citizens abroad
Manjit Gill QC – impact on children and carers.
LP dealt quickly with the issue of standing. This was uncontested by the Government.
LP set out five areas he wished to cover. They were: Article 50, EU Referendum Act 2015 (‘the 2015 Act’), features of the European Communities Act (‘ECA’) 1972, the legal limits on prerogative powers, and response to the defendant’s arguments.
At this point, the LCJ made his first substantive intervention. He asked LP to consider two questions. First, can an Article 50 notification be revoked and secondly, could a ‘conditional notification’ be issued. LP, in due course, answered both these questions in the negative, in part due to the ‘very tight timetable’ in Article 50 which was designed ‘to provide some end point’ for the Treaties. He employed the analogy of a bullet that could not be stopped after being fired, even if it does not immediately hit the target. He said any other reading would undermine the ‘clarity and continuity’ of Article 50. Similarly the power to withdraw a notification was denied. He also argued that nowhere in the Government’s skeleton was this disputed.
LP discussed Article 50. LJ Sales then asked him about the position on withdrawal prior to the Lisbon Treaty on the grounds that he was interested in the international law position before 1972 to understand ‘what Parliament intended by that Act’.
LP then spent some time trying to identify a ‘close link’ between Article 50(1) and 50(2) as he attempted to connect the ‘decision’ and the ‘notification’ (p18). Readers may be interested in a blog post by Mark Elliott and Alison Young on this issue. His main argument was that if the Government triggered Article 50 under the prerogative, Ms Miller would inevitably lose a series of domestic rights. He also mentioned that other counsel would argue that no ‘decision’ has in fact been made for the purposes of Article 50(1).
EU Referendum Act 2015 (‘the 2015 Act’)
LP’s main argument on the 2015 Act was to refute the Government’s position that the 2015 Act has in some way provided justification for triggering the prerogative. LP argued that the Government nowhere claims a statutory power existed to trigger Article 50. LP submitted that the failure of the 2015 Act to specify the legal consequences was fatal to the claim that it provided any legal justification for the trigger. This could be contrasted with the Act providing for a referendum on AV. He drew a distinction between the justifiability of the decision and the legal power to trigger Article 50. He said ‘government policy is not law’ (p29). He also replied to LJ Sales that a motion in either House would not suffice. Legislation would be required.
The MR intervened to ask whether the changed historical circumstances meant that more attention should be paid to the referendum than would have been the case hundreds of years ago. LP replied that legally the powers of Parliament have not changed. LJ Sales asked whether LP’s case rested on whether the 1972 Act abrogated the prerogative. LP said he would not ‘put it that way’, instead maintaining that the prerogative persists but that its exercise would result in the loss of rights.
Finally, in this section, LP pointed out that on the defendant’s argument, the Government technically had the power, as a matter of law, to trigger Article 50 at any time even if there had been no referendum. He described this position as ‘unsustainable’.
European Communities Act 1972 (‘ECA’)
LP emphasised the unique nature of the ECA. It confers rights that take priority over inconsistent national law, ultimately determined by a court in Luxembourg. He pointed out that there was some ‘irony’ in the fact that the desire to restore national sovereignty over those rights ‘was the reason why the defendant wishes to give notification to withdraw, and they are the very reason why he cannot use prerogative powers to do so’ (p 35). He cited two famous EC cases in support: Van Gend en Loos and Simmenthal.
He then returned to the ECA and the long title (an Act “to make provision for the enlargement of the European Communities to include the United Kingdom’) – readers will remember the strong focus on the long title in the original Barber, Hickman and King blog post. He also quoted the key provisions of s 2(1), s 2(2), s 2(4) and s 3(1). He then flagged the EU right to citizenship as a precursor to what became a much repeated point throughout the day’s hearing which was the right to vote under the European Parliamentary Elections Act 2002 (‘the 2002 Act’). For debate on this point see here and here. The point was of course originally highlighted in the blog by Barber et al.
LJ Sales then asked a question about the timeline of the rights, pointing out that some of them post-dated the 1972 Act. LP said his position was that the focus should be on the rights possessed at the current time. The LCJ then asked for clarity as to which rights could simply be re-enacted by Parliament and which could not. LP said he would return to that (p44). LP stated that the 2002 Act was the best example of a right that cannot be re-enacted (p45). LJ Sales then asked how the situation could be changed by the adding of further treaties. LP said that all that would change would be the addition of more rights (p 47). LP also argued that even if rights could be ‘re-enacted’ that was ‘nothing to the point’ because it does not help the defendant that they could be ‘put back’. LP’s argument was that the rights could not be taken away in the first place.
The LCJ pointed out that some common law rights might have been taken away by EU institutions. LP said that it was one thing for there to be amendments by relevant EU bodies and quite another for the Crown to take rights away. The MR then asked whether there was a distinction between Parliament taking away rights and the executive taking away rights. LP said that this case was a stronger situation than the taking away of common law rights because these were statutory not common law rights being taken away (p 49). LP also referred to Simms. The LCJ made it clear he was keen to avoid addressing questions about common law rights. LP also argued that the higher constitutional nature of the ECA made it even more difficult to ‘cut down rights’ (p 51).
LJ Sales then asked whether there would be any need to repeal the ECA because the rights would ‘fall away’ (p 55). LP concurred, while not making any political comment on the Great Repeal Bill (p 56).
Before the break at 11an, LP again emphasised the 2002 Act and pointed out that the right to vote would inevitably be frustrated.
Legal limits on the use of prerogative powers
LP began by quoting Lord Bingham in Bancoult on the definition of the royal prerogative and quoting Lord Oliver in JH Rayner as demonstrating that the prerogative cannot ‘alter the law’ or deprive individuals of rights. LP said that notification will ensure the Treaties no longer apply and that thereby they, and in particular constitutionally important rights, will no longer be part of UK law (p 62). He argued that it was irrelevant that Parliament could restore some rights. He also emphasised that important process rights to the CJEU would be lost. Finally he argued again that in addition to rights under the ECA, there were also important statutory rights which would be lost such as the voting rights under the 2002 Act as well as the four freedoms.
LP then addressed case law which will be familiar to readers. He started with the Case of Proclamations and moved onto Laker Airways and Fire Brigades Union. He read out a passage from the Proclamations case which constituted a little light relief for everyone in the court (p68). He dealt with the Government’s reply that ‘the commencement of the process of withdrawal’ does not itself change any common law or statute by pointing out that rights would be ‘stripped away’ and again mentioned the 2002 Act being ‘frustrated’ (p70). He also argued that the court of appeal in Laker focused on the ‘reality not the form’ (p 76).
Re Laker, LP emphasised that the AG in that case had also argued strongly that international law was not something the courts could ‘take cognisance of’, pointing out that this argument was rejected by the Court of Appeal. He also emphasised Lord Denning’s ‘side-wind’ which effectively took away statutory rights using the prerogative. LJ Sales then questioned whether the fact that the judges in Laker both talked in terms of parliamentary intention was inconsistent with LP’s claim that the issue was one of common law. This led to quite a long discussion where LP claimed that he did not ‘need to go that far’ because the general principle was that the prerogative could not take away rights in general even if in the case law it was sometimes put in terms of statutory intention. He said, however, that he was happy to rephrase it in the alternative that the ECA also provided precisely the same type of implicit parliamentary intention as LJ Sales claimed was evident in Laker.
The MR intervened on this at one point (p 98), saying that the issue could be seen as ‘two sides of the same coin’ because either it was a breach of common law or it was impliedly intended by Parliament. LP appeared to adopt this alternative reading maintaining that he did not need to show implied parliamentary intention, but if he did need to it was present in this case also.
LP’s points on Laker were first that it was an application of the general principle. Secondly, it showed that the principle applied even when the prerogative concerned international treaties. Thirdly, the relevant Act was not express in its limitation (the Government has claimed that statutory limitations must be express). He conceded that Laker might be an ‘easier’ example than Article 50 but emphasised that the prerogative would still frustrate ‘powers enacted by Parliament (p 79).
LP then moved to Fire Brigades Union (‘FBU’) and the famous quotation from Lord Browne-Wilkinson as well as those of others (p 83-6). LJ Sales pointed out that there were also procedural rights mentioned which LP accepted. LJ Sales again put the intention of Parliament argument to LP but LP maintained the case was also authority for the wider general proposition. The LCJ agreed that no one would disagree with the idea that ministers cannot take away statutory rights but wondered how it related to the international issue (p 90).
LP first said he had dealt with the argument over the 2015 Act. He then addressed the argument that Parliament had expressly placed other limits on the prerogative, particularly in the European Union Act 2011 inter alia. LP said that it was ‘nothing to the point’ that Parliament had imposed other restrictions because that did not affect the common law rule. Those restrictions were not concerned with removing rights. LJ Sales asked what would happen if his wider point was not accepted and LP said he would lose the case. LP said if he was unable to persuade the court that the principle cited by Lord Oliver in Rayner applied then he would ‘lose the case’. LP also said, however, that if he had to frame the submission in terms of intention of Parliament in the ECA, he could do that too and it would equally mean the other restrictions were irrelevant (p 96).
LP then addressed the third defendant argument that nothing in the ECA required membership but claimed that did not address the legal complaint about loss of rights. The fourth argument, known perhaps as the ‘time to time’ argument, was more ‘substantial’ according to LP (see here). It refers to the idea that s 2(1) ECA only bites on what happens to be the available rights at any particular time. At this point LJ Sales said that his question on the international law position before the ECA related to this particular argument (p 101). LP drew a distinction between ‘altering’ rights under the Treaties and a full withdrawal. He said EU law is not ‘static’.
The LCJ asked if the rights could be whittled away by agreement among the Member States. LP argued that major changes would have to be agreed by primary legislation. There was some discussion as to whether the European Union Act 2011 changed what the executive could do but ultimately LP focused on the sheer extent of the change that would be wrought by triggering Article 50, making this a ‘starker’ case (p 107). He also said that from the start the ECA prevented the removal by prerogative of fundamental EU rights such as establishment, saying ‘if I need to go that far then I go that far’ (p 108). Whenever rights are affected ‘in a substantial way’, fresh legislation would be required. The LCJ said he was ‘troubled by this’ – “this” being the extent to which the executive can vary the treaty and the effect of the rights – and asked if someone could come back to it later (p 109). LP also argued that this was not an international negotiation situation but in fact entirely done at the domestic level.
The MR asked if the effect of these rules was to create a convention. LJ Sales pointed out that s 2 ECA only referred to Treaties listed in s 1 ECA and that in order to be a relevant treaty, the ECA had to be amended by primary legislation each time to add new Treaties to the ECA as they were passed. LP accepted that argument.
The next argument was that it was standard to amend treaties on the international plane. LP claimed EU was ‘exceptional’ (p 115). He argued that EU law does not in fact only take effect on the international plane and challenged the examples given by the defendant.
He then turned to Rees-Mogg. He distinguished that case because the relevant protocol did not actually affect UK law and there were insufficient grounds to hold that the prerogative had been fettered. LP claimed that this case was ‘narrower’ because it was simply being argued in this case that prerogative could not be used to remove rights which the Divisional Court in Rees-Mogg was not considering (p 121). He also said that Parliament had already approved the relevant treaty in that case.
The court then rose for lunch.
After lunch, LP addressed questions which had been left with him. They related to issues about prejudicing Parliament’s role and the applicable international law rules on exit before the ECA where it was mentioned that commentators are not agreed on how any exit could have been achieved. He also addressed the case of Shindler, arguing that that case simply dealt with the question of whether the decision to leave the EU was affected by EU law which the Court of Appeal held it was not. He also repeated that the inevitability of the loss of rights dealt with the question of whether it was notification or withdrawal that actually affected rights (p 132), using his bullet analogy once more.
LP then dealt, fairly briefly, with justiciability. He claimed it was a question of law and if his argument is right then the court clearly has the power to make the declaration (p 136). On the constitutional impermissibility point LP conceded that this might have been caused by some sensitivity to the use of the word Parliament in the draft declaration. He offered to redraft it to exclude the word but submitted that nothing turned on the point (p 138). The offer to redraft was accepted and the redraft promised to the court and the other side probably on Friday. He then addressed the Wheeler and Unison cases saying that this case could be distinguished because it in no way sought to interfere with the inner workings of Parliament.
Dominic Chambers QC (‘DC’)
DC said he had three submissions: a) parliamentary sovereignty, b) a decision to withdraw would mean rights would be lost, including under the ECA and the 2002 Act which only Parliament can do, and c) Parliament has not authorised the loss of those rights.
He began by arguing that the Referendum Act did not replace representative democracy. At most the referendum was a ‘supplemental constitutional requirement’ (p 148). He said the defendant claims either that Parliament has already sanctioned triggering Article 50 because of the referendum (which he said was wrong) or parliamentary sanction is not needed because notification does not alter UK law (which he described as form over substance). DC asserted the inevitability of the outcome if notification is given, describing is as a ‘de facto’ legislative step taken by the Executive.
DC began by taking the court through Dicey’s definition. LJ Sales asked why the 8th edition rather than the 10th edition was used and DC said that the 8th edition was the last one actually edited by Dicey and was apparently the appropriate version for court use (p 153). DC also pointed out that the influence of the electors was political rather than legal but the courts ‘could not take notice of the will of the electors’. He also referred their Lordships to Jackson.
Interrelation between Article 50(1) and 50(2)
DC argued it was artificial to seek to separate 50(1) and 50(2). He claimed the constitutional requirements of UK law requires parliamentary authorisation precisely because that is required before rights can be lost (p 160). He set out three possible circumstances. The first was that Parliament could itself decide to withdraw. The second was that Parliament could approve a previous decision by the executive or referendum whereby the executive and referendum would just be the first two steps in the process of making a valid decision. The final step would be parliamentary ratification of that decision. The third circumstance is Parliament could directly authorise notification by ‘perfecting’ a decision under 50(1). The vital point, he argued, is that parliamentary approval is needed.
He then categorised all the relevant rights into three categories. The first was rights which Parliament could replace. The second was rights that could be replaced depending on negotiations. The third was rights that would be lost irreplaceably, and he mentioned the 2002 Act (p 163). In particular he argued against the claim that this was a ‘formal’ objection. The MR intervened to point out that replacing a right by name was not the same because of the loss of the right to determination by a different body. DC also addressed the Great Repeal Bill which he claimed amounted to the Executive setting itself up as a de facto legislature. He sought to underpin the general principle argued for by LP as being an expression of the principle of parliamentary sovereignty (p 169).
DC quoted Professor Bogdanor extensively to establish that a referendum is inevitably a conservative device because it normally binds both parliament and government (p 172). The position is less clear in the UK. DC highlighted a quotation from the 1975 White Paper where the Government said it was bound by the outcome. DC argued that it was ‘morally’, not ‘legally’, bound. Bogdanor has said that the British constitution ‘knows nothing of the people’. DC also quoted Bogdanor saying there was no reason a referendum might not be binding (p 178) and then cited the AV referendum which happened after that was written.
DC also cited a Select Committee report which caused something of a social media reaction where the Government had said that ‘Parliament must be responsible for deciding whether or not to take action in response to the referendum result’ (p 181) (see here, at p 12). He argued also that there was nothing in the 2015 Act which alters the position on parliamentary sovereignty. He said that the Government had confused policy with the will of Parliament. He finished by suggesting that only Parliament could take the decision to withdraw from the EU.
Helen Mountfield QC (‘HM’)
The People’s Challenge skeleton argument can be found here.
HM started with the EU citizenship issue. She said the question was which body had the authority to notify the EU Council. She said notification was what mattered. She emphasised that she was not saying the UK could not withdraw because that would be political. She spelled out three sections. First, the Bill of Rights 1689. Second the constitutional nature of fundamental EU rights. Third, the Act of Union and the devolution statutes.
HM made an initial point of caution about reversibility. She invited the court to assume without deciding that the trigger could not be reversed. The LCJ pointed out that any alternative would ‘blow the case out of the water’ (p 192). She pointed out that the EU cannot have people triggering and reversing repeatedly. She argued that no one was asserting that it could be reversed. LP interjected that he was not inviting the court to ‘assume’ the point but in fact he had argued the point and specifically asserted it. The LCJ said we will proceed to decide it and if there is no argument to the contrary ‘we think it is correct’ (p 193).
HM then moved on to ‘set out her stall’. The existence or execution of a statute cannot be reversed or hollowed out by prerogative. She then said her remaining submissions depended on noting that all the statutes she relied on were constitutional in nature and she cited Thoburn and HS2 in support. HM argued that special protection accrues to constitutional rights. She said it was curious for the Government to claim that the prerogative power could not be used to take away common law rights, and that there was no implied statutory power to deny common law rights, but also to argue that the prerogative could be used to remove rights in a constitutional statute (p 199). HM further argued that the special character of EU citizenship rights must inform the exercise of the prerogative. HM also claimed the European Union Act 2011 removes ‘any conceivable argument’ that the prerogative could be used to make such radical amendments to the treaty rights.
HM then ended by putting forward seven propositions. 1. Notification would remove citizenship rights. 2. Parliament could not preserve citizenship rights. 3. EU citizenship rights have a fundamental constitutional nature. 4. Such rights are mandated by legislation in the UK. 5. It follows that notification would breach the Bill of Rights because this would ‘dispense with the law or the execution of the law’. 6. Two authorities show this – the Act of Union with Scotland and the devolution statutes. 7. Finally, even if there was a prerogative power to remove ordinary rights, matters are different for constitutional rights. The LCJ asked about the rights of EU nationals in this country as well as the rights of UK citizens.
The court rose at 4.30pm. The next hearing dates will be Monday 17th and Tuesday 18th October. Further daily reports will be posted on the UKCLA blog next week.
Robert Craig, London School of Economics
The author would like to thank Tom Poole, Stephen Tierney and Jeff King for reading a first draft. The usual disclaimer applies.
(Suggested citation: R. Craig, ‘Report of Proceedings: Miller v Secretary of State for Exiting the European Union’, U.K. Const. L. Blog (14th Oct 2016) (available at https://ukconstitutionallaw.org/))