UK Constitutional Law Association

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Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union

Robert CraigIntroduction

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.

Background

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.

Article 50

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).

Defendant arguments

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.

Parliamentary sovereignty

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).

Referendum Act

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/))

48 comments on “Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union

  1. Sean Feeney
    October 14, 2016

    Robert,

    The defence is relying on Hansard materials in their skeleton from Government proposers of the Bill that became the 2015 Act.

    Other parties rely on Parliamentary materials such as House of Commons Library Briefing Paper (No. 07212, 3 June 2015) and House of Lords Select Committee on the Constitution, The Invoking of Article 50 (HL Paper 44).

    Pepper v Hart [1993] AC 593 gives the legal test for the admissibility of such materials and provides authority that clear statements by Government proposers before Royal Assent can be used to evidence legislative purpose.

    The test on admissibility was applied, by the Supreme Court, and therefore reaffirmed, in Assange (Appellant) v The Swedish Prosecution Authority (Respondent) [2012] 2 AC 471.

    In my view, Pepper v Hart is highly relevant to determine whether the 2015 Act was “advisory” or whether it provided (as I believe the Court must find) for the UK’s statutory decision to leave the UK.

    Have any of the parties cited Pepper v Hart?

    Has the defence disclosed (under their duty of candour in judicial review or otherwise) to the Court and the other parties relevant material about the UK’s domestic decision to leave the EU , a decision which the defence clearly state has already been taken?

    • Peter
      October 24, 2016

      That’s a new one for me. I thought that statutes should be interpreted without any reference to debates or underlying purposes.

    • Peter
      October 24, 2016

      Apologies. I have now read Pepper. It does have very limited application though. If one was to use Hansard to interpret statutes it would cause considerable confusion. But hey, the lawyers would be happy. More disagreement, more to read, more fees!!!

      • Sean Feeney
        November 22, 2016

        We disagree Peter.

        The question I am raising is whether the 2015 Act dis or did not provide for the UK’s statutory decision to leave the EU.

        What is at issue in Miller is the intention of Parliament in various enactments and whether the scope of various Acts does or does not include transfer or competence to or from the EU.

        I think Hansard provides essential evidence on these questions.

        I can’t think of a case which would demand fundamental reconsideration of the principles in Pepper v Hart.

  2. mark hardy
    October 14, 2016

    Sean

    You are forgetting Queen’s Consent.

    It was neither sought nor given on either this or the 1975 Bill. It was given for the Scotland Bill and all ECA matters.

    Absent Queen’s Consent, the Government must lose as the executive is not authorised to take a decision that effects the Monarchy, which clearly leaving the EU does.

    • Sean Feeney
      November 22, 2016

      Royal Assent was given to the 1975 and 2015 Act. They are on the parliamentary role. See Jackson.

      • mark hardy
        November 22, 2016

        Queen’s Consent is required (or not) when the Bill is read and is not related to Royal Assent.

        It was neither sought nor obtained for the 2015 Act because the Referendum was not intended to have any binding effect.

        Details in the pamphlet on gov.uk which has just been updated ahead of UKSC consideration of the point and after my MP – a Minister – wrote to say it was upto the AG to advise the UKSC of the notes (one wonder’s what prompted the update!).
        https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/567407/queens__or_princes_consent_november_2016.pdf

      • Sean Feeney
        November 23, 2016

        Mark Hardy has drawn attention to revisions of parliamentary materials which point to where evidence can be found if the prerogative is affected by a Bill

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  4. Steve Gwynne
    October 15, 2016

    http://www.un.org/en/universal-declaration-human-rights/

    Article 21.

    (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

    • Peter
      October 24, 2016

      But one cannot ignore the special nature of the UK Constitution. We are different from other developed countries that have a formal codified constitution. In those countries the People are supreme. They are above parliament. In our constitution parliament is supreme. It is above the people. Indeed the people have no say except as to whom the elect to parliament.
      Parliamentary sovereignty makes us unique. It is after all why many leavers voted to leave. Many of those same leavers would be horrified at the suggestion that we should have a codified constitution that limits the powers of parliament.

      • Steve Gwynne
        October 24, 2016

        I like the fact we have an evolving unwritten constitution and the eu referendum as an example of popular sovereignty was a part of that evolving constitution. In effect, with regards the referendum result, popular sovereignty is being enacted through the royal pregorative. In my opinion, the politically motivated case being brought against the government (knowing that a greater majority of MPs oppose Brexit) is an attempt to dismiss popular sovereignty and so constitutionally is a very important case.

      • Willson, LL.B
        October 24, 2016

        Is “popular sovereignty” a legal concept? Parliamentary sovereignty yes “popular” I have ne doots… Case is properly brought, any legal challenge to the Executive is welcome whatever the reason. Claimants not seeking to reverse “Breuxit”; Cameron, Farage, Johnson et al should have sought legal advice about the A50 notification process long before the Referendum. Even now, no politico mentions this case, even KC kept remarkably hush puppied about it on the most BBCQT…If only the very learned Lords Bingham and Denning were still alive and kicking!

  5. Chris Squire
    October 15, 2016

    Re: ‘ . . case law which will be familiar to readers . . the Case of Proclamations and moved onto Laker Airways and Fire Brigades Union . . ’

    Not every reader! This blog has at least one lay reader (me) and may well have many as this case in particular concerns everyone who believes, as I do, in government by parliament, i.e. as Disraeli put it, by conversation, and agrees with Clement Attlee (Times 22 May 42): ‘I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum.’

    • PETER CODNER
      October 18, 2016

      Perhaps you have not entertained the idea that the government is no more and no less than the majority in Parliament. Quite why this absurd application has not been dismissed by the court of its own motion is beyond me, because it has for long been trite law that the courts do not meddle with Parliament. Specifically, the High Court only has jurisdiction over inferior tribunals,, and Parliament is not by any stretch of the imagination and inferior tribunal, and in any event all governments divided themselves into legislature and executive, while in England the executive is the majority party in Parliament and it would be absurd for any executive to be hamstrung by referring everything it does to the legislature. This I take to be self evident or axiomatic.in my respectful submission the courts have no power to interfere with parliament and therefore this application should have been killed at the leave stage. it would not have crossed anyone’s mind to go running to the high court for a declaration that Gordon brown had no power to sign the Lisbon treaty in the first place. it is not for the courts to declare the powers of the executive, which is the majority in Parliament(in fact Parliament itself), for the simple want of jurisdiction. It is beyond me why the government has not taken that point – if it has not taken that point.is it not trite law that the courts do not interfere with the exercise of any discretion so long as that discretion is being exercised lawfully? Is it being suggested that the executive – the majority in Parliament hath not all the powers of any executive, or parliament? If so, it is a novel argument,for the executive could not do anything for people running to the courts for a remedy that lies in Parliament itself.Has the world gone mad?if any convention of Parliament needs to be changed it is a matter for Parliament and not the courts, surely that is trite law.if Parliament wishes to set up the constitutional court to decide its own powers that is matter for Parliament, is it not? The fact remains that it is inconceivable that any Parliament adopts such a course.I It cannot be the law that the executive – the majority in Parliament can do as it pleases because that is simply a statement of reality, almost a truism. This is not America, this is England.

      • Peter
        November 23, 2016

        Gordon Brown had no power to commit the UK to the LIsbon Treaty. What he did was authorised by parliament and the treaty was ratified by parliament. He could not have signed without that authority.

    • PETER CODNER
      October 20, 2016

      does the following help?-

      Pepper (Inspector of Taxes) v Hart [1992] UKHL 3, is a landmark decision of the House of Lords on the use of legislative history in statutory interpretation. The court established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation.

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  7. Sean Feeney
    October 17, 2016

    Mr Green has taken the “important” duty of candour point, which I raised above, about the absence of material relating to the UK’s domestic decision to leave the EU at pages 41/42 of the morning transcript for Monday 17 October 2016:

    “My Lords, my final point, if I am allowed to make it, and it is a rather important one, and I am conscious of the time, but it is the point on the decision. And it is extraordinary, in my respectful submission, that a decision of this importance comes before the court in a manner which the decision of a minister on a licence to make pipes would not.

    “In a smaller case, your Lordships would have a copy of the decision, know who took the decision, when it was taken, what the content of the decision was, which we
    still do not know, what were the grounds for the taking of the decision and the course of reasoning adopted, and what level of scrutiny was applied to the rights which were thereby being affected. All proper questions of public law.

    “Your Lordships have nothing of that. And the only thing we would respectfully say is it should not be right in a jurisdiction where there is a duty of candour for the government to be able to take advantage of ambiguity as to the content of its decision and the reasons for it, less still in a case of this constitutional importance.”

    https://www.judiciary.gov.uk/publications/santos-and-m-v-secretary-of-state-for-exiting-the-european-union-transcripts/

  8. Sean Feeney
    October 17, 2016

    Mr Green also introduces and develops a very important argument about the ECA 1972 ousting by statute the Royal Prerogative so that Ministers act, he says, in an Executive capacity in a voluntary transference of legislative competence from Parliament to the European legislature.

    If this argument is novel, this would turn on statutory construction which would require fundamental reconsideration of previous authorities including Rees-Mogg.

  9. Sean Feeney
    October 17, 2016

    The defence skeleton has apparently conceded the arguability, on an application for permission for judicial review, of the application of the principle in Laker to the 2015 Act at paragraph 43:

    43. In the present case, by contrast, there is no legislation (either in the form of the ECA, or otherwise) which has “fettered” the Government’s ability to use the prerogative to give effect to the will of the British people as expressed through the referendum. As explained above, no legislation contains any such fetter either expressly, or by necessary implication. There is no legislation other than the 2015 Act which purports to regulate the process by which the UK may decide to withdraw from the EU. Save in the 2015 Act, those matters have not been “directly regulated” so as to come within the principle expressed in Laker Airways.

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/558592/Miller_v_SSExEU_-_Skeleton_Argument_of_the_Secretary_of_State_300916.pdf

    The Laker principle is arguably in conflict with the explanation given to the Court in the opening speech of Her Majesty’s Attorney General that the decision to leave is an exercise of the Royal Prerogative.

    https://www.judiciary.gov.uk/wp-content/uploads/2016/10/20161017-am.pdf

  10. PETER CODNER
    October 18, 2016

    the relief is being sought? – Mandamus or a declaration, always assuming this is an application for judicial review?who granted leave? Is it not true that for all practical purposes Parliament is the majority in Parliament – in effect the government? I always understood that it was trite law that the courts do not meddle in the affairs of Parliament. What has changed?was it ever suggested that Gordon Brown had no power to sign the Lisbon Treaty in the first place? – What would have been the reply of the courts then? – Presumably go away, we do not meddle in the affairs of Parliament. Is it still true that no Parliament can bind a subsequent Parliament?

    • Peter
      November 23, 2016

      Wow. You do seem to be very angry. You keep saying that certain matters are “trite law”. Yet you misconstrue the facts and make assertions that are not necessarily facts. There is much disagreement about these issues possibly because of the crossover between politics and law.
      I shall try to address your points.
      You state that the government is the majority in parliament. This is wrong and rather inaccurate. The government is the cabinet, the executive. Governments can have a majority for a particular issue and may not.
      The “government” is the three branches – executive, legislature and judiciary. Ours might be jumbled up but so that the executive sits in the legislature and the head of the judiciary is in both but for all intents and purposes these are the three branches. Theoretically they are independent. In most countries that have a modern constitution that controls the operation of these three branches the their position is governed by the constitution which is codified and overrides any legislation that parliament passes.
      In ours parliament sits above the people, the executive and the judiciary.
      Parliament acts by majority but that does not make it the government as you state.
      You say that the judiciary cannot interfere with what goes on in parliament. This is well known and established and is the case in most countries. You then jump to the conclusion that if the judiciary is asked to opine about what exactly our constitution says that amounts to interfering with parliament. This is nonsense. The courts are merely declaring what our constitution is. How else would one discover what our constitution says on this matter. It is a legal matter, not necessarily trite but legal par excellence. Who else but the top lawyers in the land should decide such matters.
      Interfering with parliament would be issuing an order that parliament should conduct itself in a partlcular way. The courts are doing nothing of the sort. They are merely declaring what our constitution is where there is a dispute on the matter.
      Both sides agreed that the court was the right place to determine the matter. With good reason. You say that the court should have dismissed the case on the grounds that it is obviously an interference with the operations of parliament.
      It does seem that you are one of those people who are so in favour of leaving that you favour anything that will quicken that objective and are against anything that delays the process or might interfere with it. You are not alone.
      Would you be so in favour of the executive having unfettered power to take away rights obtained through statute if the executive was against leaving and parliament was in favour? I wonder.
      The referendum is entirely irrelevant in this matter. The question is whether the executive or parliament alone can terminate a treaty that gives persons within the jurisdiction rights and imposes obligations on others.
      Your argument and that of the government is that they can do this without involving parliament.
      This is strange. Our constitution has existed for at least 1,000 years. Yet there are only 3 records of a referendum being held. Two were on the EU, one was on proportional representation. The latter made specific provision for the passing of appropriate legislation if the referendum result was in favour of proportional representation. The EU referendums were silent.
      Hardly part of our constitutionl arrangements.

  11. Sean Feeney
    October 18, 2016

    On Monday, 17 October 2016 Mr Eadie QC took the Divisional Court hearing Miller and Santos to the Supreme Court decision in Assange (presumably [2012] 2 AC 471; the citation is not given in the uncorrected transcript) for authority on propositions of construction applied to domestic statutes that involve international law.

    https://www.judiciary.gov.uk/publications/santos-and-m-v-secretary-of-state-for-exiting-the-european-union-transcripts/

    As far as I can currently see, he did not take the Court to the admissibility test for Hansard and other Parliamentary materials in Pepper v Hart [1993] AC 593.

    The defence and other parties rely on such materials (see my comments above).

  12. Pingback: Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Day 2 | UK Constitutional Law Association

  13. Peter
    October 21, 2016

    Is there not something we are missing here. The EU treaties are the only treaties that impose obligations on persons who are not signatories to the treaties. In every treaty the defendant is the state whose obligations arise by contract – it agreed to the terms of the treaty and was violating the obligations placed upon it. Personal obligations can arise and be enforced only be contract or law. The EU treateis impose legal obligations on individuals and corporate entities. This can only happen as a matter of domestic law.
    That is why the prerogative approach is inappropriate.
    There is another issue. Negotiating a treaty that gives rights to persons is very different from one that takes away rights of individuals.
    The government proposes to take away rights of individuals by dictat.
    That cannot as a matter of principle be right.

    • PETER CODNER
      October 22, 2016

      what is any law initiated by the majority in Parliament but dictat? Before you demand rights would do well first of all to define what you mean by a right. It is perfectly possible to derogate from any treaty and most treaties make provision for such derogation. You make the normative proposition that the government “ought” not to do such and such; whence you derive your norms? – Religion? By reference to what doyou seek to impose your religion on other people?

      • Peter
        October 24, 2016

        By and large laws are general and apply to all. Dicats apply to particular individuals. In general I would say that the UK parliament passes laws that apply to all. Courts issue orders to individuals to do something specific.
        The term right frequently is used to include a liberty or freedom, but if one was to be pedantic one would distinguish between the three. I do not have the time for such a lengthy analysis.
        One usually comes across rights in a court where one complains that one’s rights have been infringed or that another has failed to meet his obligations. The source of rights in this country is contract or statute or the common law (meaning in this case judge made law).
        I have a right to sue the supplier who sold me faulty goods because of a contract or statute. The government has a right to tax me because of a statute passed by parliament. My right to walk down the road was infringed by some youths who beat me up.
        Not sure I can be more specific. The other side of a right is frequently an obligation.
        Contracts – and treaties – are agreements that set out rights and obligations of the parties. If the rights of a party to a contract are infringed the other party to the contract can sue and obtain redress. Likewise if a party has failed to meet his obligations the other party can sue.
        Only parties to a contract can – normally – sue. We changed that to include some beneficiaries but that is a detail and only came a few years ago.
        With treaties (contracts between states) the signatories agree to – frequently – carve up some piece of land or another often as a result of war or peace. Sometimes they set up a court to determine what happens if the rights of one party are infringed by the other or if the party with the obligation fails to meet that obligation, but usually the reaction to the infringement of the terms of a contract regarding territory is war, or nothing. When Hitler broke the treaty of Versailles we did not react.
        With the UN treaties there is no court to determine disputes. Over Iraq we acted as judge and jury and went to war.
        No individual rights or obligations were involved in such treaties.
        When we got rid of our vast empire we made treaties but since individual rights were involved we also enacted laws.
        In some cases we enacted laws that became the constitution of a colony – Canada and Australia.
        The most common treaties are tax treaties. Tax treaties bind two governments to reduce (never to increase) taxes paid by persons within their jurisdiction.
        The ECHR treaty – enacted or incorporated into law in the UK in 2000 but ratified in the 1950s (not sure exactly when) – bound the UK government to abide by certain obligations. The court of jurisdiction was in Strassbourg.
        In all these cases the defendant is a government, a signatory to a treaty. A treaty is nothing more than a contract that imposes obligations and grants rights. Sometimes the rights granted are to individuals but the obligations under all treaties that come to mind are always on the signatory – the government or country it represents. If I sued for an infringement of my rights under a tax treaty the defendant would be the government. Likewise under the ECHR.
        The EU treaties were unique. They did not surrender sovereignty as is the conventional fallacy. They delegated legislative powers as permitted by the UK parliament. The EU was not sovereign. It was subordinate. A matter of semantics I know but the truth. Otherwise we would not be able to get out as we have decided to do.
        The laws created as a result of the EU treaties imposed obligations on persons in the UK jurisdiction and gave rights to other persons. Uniquely the defendant in the case of many laws enacted by virtue of the EU treaties is not the government.
        I do not know all the treaties and I might be wrong but it seems to me this is a unique feature, which takes it out of the arena of the Royal Prerogative.

      • Peter
        October 24, 2016

        Apologies but I did not properly address all your points. You are probably correct that dictat is not the right word to describe what the executive proposes to do. It is more correct to say that the executive is usurping power that it does not have and that only parliament has. Is that dictat? Not strictly speaking but it is certainly dictatorial to bypass parliament.
        Assume that the boot was on the other foot and parliament was in favour of following the referendum result but the executive was not. Would you be so determined that it was up to the executive not parliament to give the go ahead.
        I do not know of any derogation from the EU treaties. You will have to point them out to me.
        There is nothing peculair about the objection to what the government is doing. It is simply usurping a power that the claimants say it does not have under our constitution.
        Religion does not come into this matter. I see no place for religion in this matter. It is perfectly intelligible temporally.

      • Peter
        October 26, 2016

        Laws enacted by parliament are rightly called laws, although if one was being very pedantic one might consider some of these laws do not comply with the requirement of generality that should apply to all laws. Dictat was my word for the actions of a dictator who, without due process takes away rights of persons.
        One can derogate from anthing if the parties to a contract or treaty agree.
        A right is something that can be nforced in law. If you break the terms of a contract or treaty the wronged party can enforce the right that has been infronged against the other party. Contracts and treaties also contain duties and obligations. If the party who promises to keep his obligations breaks his promise the other party can enforce the corresponding right.
        All pretty trivial stuff.
        No religion is involved here. Not sure where that came from.

  14. Willson, LL.B
    October 22, 2016

    As a 19 yr old Law Undergrad, Constitutional and Administrative Law left me a bit cold. Now 70 years of age that subject area has gripped me, and is exercising those “little grey cells”, because of this very significant case. I did not have a career in the legal profession, but was involved in consumer protection and trading standards, so always retained an interest in legal matters, particularly EU law. I am 100% supportive of any legal action(s) that challenge The Executive, and my hope is that Parliamentary sovereignty is triumphant and that TM the PM, ironically, a “Remainer” and her “Gang of 3” have their itchy trigger fingers stayed for a while. Next stop UK Supreme Court; any thoughts as to whether or not the ECJ could feature in this saga at some time?

  15. Pingback: The Brexit court case (Miller/Santos) digested | Thinking legally

  16. Pingback: The Brexit court case (Miller/Santos): Day two digested | AL's LAW

  17. Pingback: The Brexit court case (Miller/Santos): Day two digested | Thinking legally

  18. PETER CODNER(the chap that won Hashman and and Harrup-v- the UK.)
    October 24, 2016

    so where is the judgement? reserved until….. hell freezes over?

    if you are going to cover the case you might at least set out what kind of action it is. are the pleadings public?-if so they can be found where?

  19. Pingback: Brexit case Miller/Santos: third day digest | Thinking legally

  20. Pingback: An initial call for clarity over the ‘constitutional requirements’ for withdrawing from the European Union - Constitutionalism and Politics

  21. PETER CODNER(the chap that won Hashman and and Harrup-v- the UK.)
    October 29, 2016

    if the applicants’ arguments were to succeed it would leave open to the argument that it was ultra vires for Gordon Brown to sign the Lisbon treaty since no extant act of parliament authorised it.

    In the premises they would have to argue that he was exercising the prerogative-the very thing they would deny the government. Aliter were they to get their declaration a one clause act-possibly the Secession Act could cure it. the one clause: the government shall have power to secede from the European Union. Nonetheless it can be argued that such a power is implicit in the Referendum Act-for why else would parliament give the electorate a say in whether or not to secede from the EU?
    the key issue or fulcrum of this case is whether or not the act of secesion-article 50 is a matter of ” High Policy” not amenable to judicial review per the CCSU case, in short a policy decision , not justiciable in the courts.;clearly Wednesbury irrationality does not arise.

  22. Pingback: Brexit Basics 11: update 2nd November | Law & Religion UK

  23. Pingback: Why all Member States should clarify their Constitutional Requirements for Withdrawing from the EU | Verfassungsblog

  24. Pingback: ‘The Brexit decision’: Posts on Verfassungsblog and the European Law Blog • Oliver Garner

  25. Pingback: Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Supreme Court, Day 1 | UK Constitutional Law Association

  26. Pingback: Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Supreme Court, Day 2 | UK Constitutional Law Association

  27. Pingback: Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Supreme Court, Day 3 | UK Constitutional Law Association

  28. Pingback: Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Supreme Court, Day 4 | UK Constitutional Law Association

  29. Pingback: Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association

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