UK Constitutional Law Association

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Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Day 2

Robert CraigEditors’ note: For a report on the first day of proceedings, please see here.

Introduction

The second day of proceedings in the Miller case started at 9.45am as scheduled following the swearing in of a new judge of the High Court. Three QCs appeared for the remaining Claimants: Helen Mountfield QC, Patrick Green QC and Manjit Gill QC. The Government case started at around 11.30am and was opened by the Attorney-General, Jeremy Wright QC, then James Eadie QC who took up the rest of the day, finishing his submissions at 4.30pm – which was also when the court rose. The transcript for today can be read here.

Before the hearing began, the Lord Chief Justice (‘LCJ’) remarked that further unwelcome emails and other communications had been directed at the Lead Claimant. He said it was ‘wholly wrong’ and the ‘full vigour of the law will be used to ensure that access to Her Majesty’s courts are freely available to everyone’ (p 1).

Helen Mountfield QC (‘HM’)

HM began by reminding the court that she had seven propositions and that three had been covered on Thursday. They were:

  • Notification would remove directly applicable or effective EU citizenship rights.
  • Extinction of rights would occur which would not be preserved or retained by Parliament – the skeleton gave examples.
  • Citizenship is part of the overarching framework of the legal system.

HM’s fourth argument was that EU law was only recognised in UK law because of domestic legislation. She said the prerogative power to withdraw from the EU ‘is implicitly ousted by the European Communities Act (‘ECA’) (p 4). She said this answered LJ Sales’ earlier questions about whether rights arose before or after the ECA was enforced. She then said that two fundamental constitutional principles are in tension. The first is that the Crown may enter or withdraw from treaties and the second is that the Crown does not have power to confer or remove rights in domestic law (p 5). She said the first is ‘wholly conditioned by the second’ because normally treaty making has no domestic effect. This meant that Parliament had willed that EU treaties could be the source of rights until it says otherwise.

The Master of the Rolls (‘MR’) then asked why Laker took a narrow approach where the court sought to explain why parliamentary sovereignty applied in that case, because ‘on the wording of the statute, the prerogative had been excluded’ and suggested that HM was introducing a ‘much wider principle’. HM said that the long title stated that the purpose was to enlarge the EU to include the UK so parliamentary authority was needed to ratify a treaty (p 7).

HM then asserted that there was a constitutional convention – and the MR intervened to ask her if she was saying it was a new constitutional convention. HM said you have to look at the history. She said that while the ECA is in force, the prerogative is impliedly abrogated because otherwise it would be the Crown not Parliament that is conferring or withdrawing rights (p 9). She said that s 2 European Union Act 2011 (‘the 2011 Act’) confirmed this. This provision meant that the Crown cannot alter the foundations of EU law in the UK without parliamentary sanction.

HM’s fifth argument was that notification of withdrawal was ultra vires the Bill of Rights 1689 (‘BoR’). The pretended power of dispensing with laws or the execution of the laws by regal authority is illegal. She said this meant ‘foregoing’ or ‘disregarding’ the law (p 10). She cited the Case of Proclamations and an example of merchants who were prevented from working in London by proclamation of Henry IV in breach of an Act from 1297. She then suggested that this might have been the reason why it was Henry IV who wanted to ‘kill all of the lawyers’. She then cited a New Zealand case in further support where the Prime Minister’s pronouncement of policy was held to amount to ‘purporting to suspend the law without the consent of Parliament’ (p 14). Then she quoted Dicey as saying that the pronouncements of the Prime Minister must be regarded as ‘made by regal authority’. Finally on this point she cited Lord Sumption in Nicklinson where it was held that an executive act could not be used to frustrate the will of Parliament (p 15). In summary she claimed therefore that use of the prerogative would similarly breach the BoR.

HM’s sixth argument was that use of the prerogative would contradict the Act of Union with Scotland. HM said this was another constitutional statute which was designed to protect Scottish law and was the founding document of Great Britain. She quoted the rule that changes must be for the ‘evident utility’ of the subjects of Scotland. LJ Sales intervened to suggest that this argument added nothing novel to the main arguments. HM claimed it added a vires point. She said that the Govenrment’s case was that ‘evident utility’ is not justiciable (p 20). She said that only the UK Parliament can remove Scottish rights.

HM’s seventh point concerned devolution: that removing elements of EU law would remove limitations on the powers of devolved bodies and interfere with citizens’ rights. She referred to extra-judicial writing of LJ Sales in support of her argument that the force of statutory provision has to be inferred from the circumstances (p 24). She finished by claiming that executive action would inevitably alter the balance of devolved matters and that therefore the prerogative had been abrogated or would be unlawfully exercised if it hollowed out the settlement.

Patrick Green QC (‘PG’)

PG appeared for the Expat Interveners. He argued for two rights which were outside Parliament’s gift to replace. He said he would not name the witnesses because they too had received ‘unhelpful correspondence’ (p 27). The first right belonged to a Canadian whose right to reside in France derived from her British husband. This meant that Parliament had conferred rights on British nationals and their family members vis-à-vis other EU governments that a Parliament outside the EU cannot replace. The second right was access to healthcare which would be lost if the claimant had to move from France to the UK.

PG first argued that a case brought by the Commission showed that the Department of Trade and Industry in the UK had failed to give full effect to EU law by giving a ‘nudge and a wink’ to UK employers that they did not need to comply fully with particular regulations and the Commission had stopped this. PG claimed that this breached the principle of effectiveness. He linked this to Lord Pannick’s argument about process rights and argued that Parliament could not replace these rights. He also claimed that even if Parliament could replace some rights, he claimed, ‘borrowing from private law’, that went to ‘mitigation not breach’ (p 32).

PG then went onto the ‘unique legal order’ of the community. This caused a structural change to the constitutional settlement of the country. PG argued that Parliament had in fact conferred legislative (not executive) powers upon the EU which only Parliament could confer and therefore only Parliament could now exercise and amend (p 33). PG said the Government is not acting purely on the international plane but is in fact participating in the delegated aspect of the legislative function which Parliament conferred on EU institutions. He thus sought to bolster the argument that any changes had to be approved by Parliament. It is therefore no problem for rights to be reduced but only Parliament has the power to do so. The LCJ then asked if Article 50 was part of this process. PG said it was not but was just used to trigger the disappearance of the treaty rights. PG said that the Article 50 notification was not part of the legislative process.

PG then drew a distinction between variation of rights and variation of competence. PG suggested that if Parliament had wanted to leave in 1975, the 2011 Act put the matter of ‘implied abrogation’  beyond doubt. This is because s 2 and s 3 of the 2011 Act impose serious restrictions on much less significant rights than this case in terms of increasing or decreasing competences so the Government cannot take away treaty rights at the stroke of a pen. Instead it is a matter solely for Parliament (p 41).

Turning to devolution, PG then said that taking away the limitation on devolved assemblies actually confers wider legislative competence on those bodies than Parliament has done thus far (p 41).hx

Finally, PG declaimed the ‘extraordinary’ fact that in much smaller cases there would be a copy of the actual decision with clear evidence of who took the decision, what the content was, when it was taken, and the grounds, none of which was revealed in this case (p 42).

The MR asked if PG thought Parliament owed a duty to non-citizens. PG said no, the point was that Parliament has conferred rights which cannot be replaced by Parliament. Further the rights might be owed to family members of citizens, who are not themselves citizens.

The MR then asked about the implied exclusion of the royal prerogative under the ECA. Was PG arguing that the 2011 Act provided a separate limb. PG said yes – the 2011 Act was a freestanding separate argument which is not dependent on the ECA.

Manjit Gill QC (‘MG’)

MG started by arguing that conditional notification could not be given. He emphasised that there is a new constitutional order which he said the defendants had lost sight of (p 48). He argued that three particular categories of person were affected. First, British citizens. Second, EEA nationals. Third, non-EU family members.

He said that the concept of ‘dependency’ is much broader in EU law than human rights law. He said that where a British national child or disabled person requires the care of a non-EU citizen, EU law protected their rights. This is true even if the carer is here despite abusing rights of residence if the effect of removal would force the child to leave too. MG then moved onto people who would be subject to criminal liability if they lose their rights of residence and will be subject to summary removal. MG argued that it was not lawful for the executive to in effect impose criminal liability on people by its own actions (p 52). He criticised the defendant’s claim that MG was suggesting immediate liability would accrue and instead explained that it would necessarily arise later. MG emphasised that the executive has no power to create or expose a class of persons to criminal liability. He then cited authority in support of this proposition in Proclamations and Jones.

MG then went on to argue that there were irreversible negative impacts of notification (p 57). He also argued that his submissions on children were illustrative of the points made by Lord Pannick.

The Attorney-General, Jeremy Wright QC (‘AG’)

11.30am.

The AG began by laying out the political backstory including the decision by the former Prime Minister to promise a referendum and implement the outcome thereof.  He claimed that as a result of the statements made by the Government, it was clear that the decision to leave the EU had been made (p 61). He asserted that all the claimants were not only challenging the notification but the original decision and that the effect was to ask Parliament to answer the same question put to the referendum and invalidate the decision already taken (p 62). Instead he argued that the decision was a classic example of the proper exercise of the prerogative power. He also said that Parliament had not taken multiple opportunities to supplant or erode the prerogative.

The AG said he was going to deal with the 2015 Act and the EU legislative scheme, Mr Eadie QC would deal with the prerogative and rights and finally Mr Coppel QC would deal with EU citizenship rights and devolution.

The AG then conceded that the Government’s position was that notification was not revocable. He also said that their position was that conditional notice could not be given (pp 64-5).

The AG then argued that the silence of the EU Referendum Act 2015 (‘the 2015 Act’) could be read in the opposite way to the claimants that there was no need for further legislation before giving effect to the referendum outcome. If Parliament had intended something different, it would have said so. He then cited some Hansard evidence which he said showed that it was understood that in the event of a leave vote, it was clear that no further decision would be required from Parliament (p 68). He argued that the assumption was that normal legal principles of prerogative were assumed to apply by all concerned.

The AG distinguished the AV referendum act in two ways. First, there was no prerogative power to amend how elections took place. Second the 2015 Act should be read in the light of the existence of Article 50 as the procedure which would be used. There was therefore no need to set it out in the 2015 Act. He also distinguished the 1975 referendum because there was no regime of parliamentary controls and no Article 50 in 1975. He also said that just as in 1975 an Act would be needed, so an Act would eventually be put to Parliament in this case too but not before Article 50 was triggered.

The LCJ then asked if he was coming back to the ‘way in which the legislation will operate in due course’. The AG said he or his juniors would. He made clear that their case was not that the 2015 Act provides a source of power for the notification. It left in place the previous power. He also emphasised that notification would not limit the involvement of Parliament which he said had many and various means of holding the Government to account and talked about a motion discussed in the House of Commons last week.

The AG then moved on to De Keyser’s Hotel. He submitted that this case showed that an express restriction on the prerogative or necessary implication was sufficient in normal cases but in EU cases it had to be express restrictions which established the necessary parliamentary intention (p 74). He then cited extracts from speeches in that case which he argued meant that 1) express words or necessary implication were needed, 2) prerogative is excluded if statute directly regulates, and 3) prerogative is excluded if the whole ground is regulated by statute (p 78).

He then argued that Laker applied those principles. He claimed that the statute in that case provided a comprehensive statutory route which the Government failed to use and which was an ‘elaborate code’ (p 79). The AG claimed that this was a straightforward application of De Keyser. He then moved onto Fire Brigades Union (‘FBU’). He said that the case was authority for the proposition that the statutory scheme must cover the whole ground or, if not, the prerogative was only excluded to the extent that statutory powers apply.

The AG next addressed Northumbria Police Authority (‘Northumbria’). He said that the court held that the power could be used because the statutory scheme did not grant a monopoly (p 84). He said that the judges held that the situation fell short of an express and unequivocal inhibition sufficient to abridge the prerogative power. He therefore argued that the prerogative must be excluded expressly if it is to be excluded. The final case he addressed was XH v SSHD. This concerned the cancellation of passports in a terrorism case. The argument was that the prerogative power of passport issuance was displaced by an Act. It focused on a necessary implication being different from a reasonable implication. It is narrower. The AG claimed that it showed that it would be surprising if well-established prerogative powers were impliedly excluded without an express indication to that effect (p 88). The AG submitted that the situation in the EU context was ‘even narrower’ (p 88).

To further this point, the AG relied on Rees-Mogg. He said the primary reason why that case was decided was because the ECA was not capable of imposing an implied restriction on the treaty making power. He claimed express terms were needed. He also claimed that no express terms or necessary implications were present in this case. He therefore claimed this case was a long way from the line of case law beginning with De Keyser.

The AG then moved onto the statutory scheme. He started by asserting that the 1972 Act was agreed in the context of customary international law. The LCJ asked for a note to be provided asking for more information on that point. He said that the 1972 Act placed no restriction on the treaty prerogative at all.

The MR then asked if the AG was fundamentally distinguishing between amending and withdrawing because one does require legislation and change but ‘you seem to be saying the other one is a different species entirely’ (p 94). The LCJ then pressed the point, asking if the AG accepted that amending and withdrawing were the same and required legislation. The AG accepted it makes no difference which is being proposed. However, the AG said that there was a whole process beforehand and that the ECA takes nothing away from the prerogative. (NB: This foreshadows Mr Eadie’s arguments infra).

The AG then considered the European Parliamentary Elections Act 1978. He argued that this was the beginning of a series of Acts that sought to control an aspect of the prerogative. The AG’s main point was that whilst this control was exerted in a number of Acts, it was significant that no control was exercised over the Article 50 power and that this was significant. He listed a series of Acts which also resulted in the implementation of various EU Treaties (p 98). In particular, the European Union (Amendment) Act 2008 gave effect to Article 50 as part of the Lisbon Treaty and the fact that it needed parliamentary approval but no conditions were imposed was important because no ‘parliamentary control was imposed’ (p 100). He suggested that Parliament had chosen where to exert control and left others ‘in which the prerogative remains available’ (p 103).

The LCJ then asked whether the question of where an agreement under Article 50(2) was negotiated under the prerogative and ‘can be distinguished from anything that amends the treaty’ (p 104). The AG said that someone would get to that point for the Government. The LCJ said that the implication of the argument was that the whole of Article 50 was completely within the prerogative and could be made without any reference to Parliament. Finally the AG mentioned the 2015 Act which he said contained no restrictions on the Government’s use of the prerogative.

In summary he argued that Parliament can demonstrate its sovereignty as much as by not doing something as doing something. Also, Parliament has legislated repeatedly on the executive freedom of action and chose not to restrict the prerogative on any of the multiple opportunities it had to do so. The limited intervention triggers the Rees-Mogg principle which requires express restriction which there has not been. Parliament cannot have done other than leave the field unoccupied (p 106-7).

James Eadie QC (‘JE’)

JE said he would address Lord Pannick’s main argument as well as briefly the necessary implication argument put in the alternative.

JE first sought to claim that it would only be legislation later in the process and exit from the EU which would change the law. Therefore the overwhelming likelihood of parliamentary involvement in the process meant that the real objection of the claimants was to the initial step which may lead to the necessity for further legislation (p 109). This he called the ‘pre-emption point’.

JE said he wanted to make four points:

  • The key question is whether Parliament has left the relevant power in the hands of the executive even if it more or less directly impacts upon current statutory rights
  • JE denies the existence of Lord Pannick’s broader principle
  • The Crown acts on the international plane and Parliament gives effect in the domestic plane
  • There are other factors tending against existing statutory rights operating as a restriction upon the prerogative – such as various Acts – but there are three points in particular:
    1. Triggering Article 50 has no immediate effect
    2. Parliament may be intimately involved through inevitable passage of primary legislation
    3. The effect on domestic rights is greatly exaggerated

JE then quoted Lord Bingham in Robinson extolling the virtues of a flexible and non-mechanistic constitution.

JE then sought to define the prerogative as the residual powers left to the Crown by Parliament (verbal emphasis) (p 114). The MR asked how that fit in with common law rights. JE asserted that if the exercise of a treaty power took away common law rights then the Crown could do that too but the ultimate choice lay with Parliament (p 116). JE again said that it all turns on the issue of parliamentary intention.

The LCJ asked if a distinction was being drawn between a treaty with no domestic effect and where there was an effect (p 118). JE said he did not rely on that distinction. The LCJ said that point ‘must be the heart of the argument’. Can the prerogative be used even if it affects rights accrued under domestic law. JE: ‘Yes’ (p 118-9). LCJ: ‘It would be very important to look at the authorities that underpin that proposition’. The LCJ said that the ‘other proposition’ is that you do not need it if you look ‘the other way round’. But you ‘are saying that you can withdraw from a treaty and defeat rights that Parliament has conferred’ (p 119).

JE replied that the key question was the intention of Parliament. Had Parliament chosen to leave the power with the Crown? LJ Sales then asked whether the two contexts could impact on the inference of Parliament’s intent. LJ Sales said that the background might be rather different if withdrawal would have effect on domestic law ‘which might be said to be contrary to the very strong traditions of the common law’.

JE said that he agreed the context was important but the question was the intention of Parliament and if it was accepted that power could be left with the Crown even if it impacted on domestic rights the question is whether that was intended. It is almost like applying the principle of legality. LJ Sales then said that the two different backgrounds were: 1) JE said international affairs were for the Crown and 2) Lord Pannick said that the Executive cannot change rights that exist in domestic law. JE said that there was an element of ‘two ships passing in the night’.

The court then rose for lunch.

JE began after lunch by repeating his focus on parliamentary intention. He challenged Lord Pannick’s interpretation of Lord Oliver’s principle. He reiterated that Parliament could decide to allow an executive power to be used to take away rights (p 127). He said this was the question in this case. He then discussed the Tin Council case. The LCJ said that normally there is no effect of an international treaty in domestic law for example with the ECHR. JE said the key point is that treaties are not self-executing. However, actions in the international plane can still have domestic effect (p 131). JE said that in this case Parliament has decided not to limit the prerogative. So Lord Oliver’s principle simply does not address the issue. JE then went on to deal with, and dismiss, the relevance of Walker v Baird. The LCJ agreed that it was a ‘very narrow point’ (p 137).

JE then asserted that the Lyons case meant that actions in international law can impact on domestic legal rights. LJ Sales said that that principle did not take rights away but just ‘informs the interpretation to be given to statutory provisions that create rights’ (p 140). JE cited Post Office v Estuary Radio in further support of the idea that international actions can affect domestic rights (p 143). He gave a further example or two. The MR then asked him for a specific double taxation example. JE emphasised that parliamentary approval might eventually be required but that the key was that there was a ‘sequencing’ process which was essential (p 147). Parliament can later refuse it. The MR pointed out that in those cases parliamentary intervention was substantive, whereas in this case the difference was that there might be ‘nothing else we can do’. JE said Parliament can say yes or no and, if it is no, the Crown has to go back and renegotiate (p 149). JE said that in this case a whole range of different impacts could occur. He said that there were a ‘set of rights that would require legislative intervention directly, were they to be altered, because they currently sit on the domestic statute book and they would have to be altered by primary legislation’ (p 149). He then said that there were other rights that might not be replicated, depending on negotiations. The third lot of rights are where the right is ‘hollowed out’.

JE then summarised where he had got to so far. He said that his primary submission was that ‘executive action on the international plane may provoke, or require, using the concept loosely, Parliament to change domestic law rights’ (p 151). He then went on to claim, secondly, that when the Crown signs a treaty it acts for the country as a whole. Parliament then gives effect to the Crown’s actions in domestic law: a ‘constitutional joint enterprise’ (p 153). This is not an ‘abrogation of parliamentary sovereignty’ because Parliament has entrusted to the Crown the authority to make the primary decision. Parliament can control the process before or after by not giving effect.

Thirdly, the examples of ‘sequencing’ where action by the executive is followed by Parliament bringing domestic law into line through legislation are not surprising. But none of this means that legislative permission is needed ‘before, as a sequencing matter… the unmaking of a treaty’ (p 154). The fact that Parliament will need to legislate ‘does not limit …the availability of the power in the first place’ (p 154). He then suggested that the implementation of directives starts with the exercise of the prerogative. He then said the ‘punchline’ was that therefore ‘actions by the Crown on the international plane will provoke or require – loosely again, subject to Parliament’s right to disagree – Parliament to make changes to domestic legislation, whether by introducing wholly new legislation or by amending legislation’ (p 156-7).

He then moved on to the fourth element of his argument, the ‘other features’ of the case.

He said that all of this was in a sense in the alternative because the primary submission was that Rees-Mogg required express restrictions only (p 157). He then handed up some further materials including the 2008 Act and explanatory notes. He also handed up two academic articles by Professor Paul Craig and Professor Gavin Phillipson.

LJ Sales then asked ‘if the royal prerogative has already, in a material respect, been withdrawn by the ECA, I hadn’t understood that it was the Crown’s argument that it was somehow restored by the 2008 Act’.  JE said that the Crown thought that it was ‘not abrogated by either’. LJ Sales asked him to assume that it was for a moment – ‘I hadn’t understood that you were saying that it bounces back again in 2008… I am trying to understand why we are going to this Act’. JE said that it was because the legislative scheme meant that it was not withdrawn by the ECA and there were repeated opportunities to call back later (p 162).

JE then went on formally to reject PG’s argument that EU authority was delegated legislative authority. The LCJ said he wanted to understand the scope of the executive power under Article 50. Also he wanted to know if there was a difference between giving notice and concluding the agreement. Finally he wanted clarification on what the Crown is entitled to do. He said he did not think the Crown could ‘go back and do it at a subsequent stage’ (p 165).

JE then said that the closer the claimants go to challenging the withdrawal as well as the notification, the closer they ‘drift towards the rocks’, the closer they are to inviting the court to make Parliament take the decision again (p 167). JE then said notification only fires the starting gun, since that is very remote from the ‘constitutional vice’ alleged by the claimant. ‘In other words, the more steps between the Act… and the vice’ the less likely that Parliament can be taken to have removed the power to take that step. He said that the Government might negotiate or take other steps which are much more significant than firing the starting gun. Article 50 is just the formal invitation to ‘begin the dance’ (p 169). The extent to which rights will be materially affected cannot be known at this stage (p 170).

JE then said that if no change is made to domestic legislation then the rights of residence in domestic law, for example, would continue to apply after withdrawal. The LCJ then asked about rights that were not in the control of the UK (p 172). JE said he would come to that. He then said he disagreed with MG’s claim that triggering Article 50 would expand the reach of criminal law.

After a short break, JE moved onto the fifth feature.

JE said that Parliament would be intimately involved in the process at a practical level. He said they will necessarily confront matters. JE then said that some matters ‘will require, necessarily, legislation because some of the scheme of current EU law rights has been transposed domestically’ (p 176). He claimed, however, that it was ‘unrealistic to try and split out, by reference to the source of rights, what Parliament will ultimately do’.

LJ Sales then asked if it was the Crown’s position that in the basic case of notification it would follow that exit after two years would mean that there would be ‘no enforceable EU rights under s 2(1) ECA’. JE agreed. JE also said that that would be ‘direct EU rights’ but other rights that have been ‘transposed into legislation… would need to be changed anyway’. JE finished on parliamentary involvement by arguing that the sequencing doesn’t really matter. Parliament can intervene any time.

The sixth feature was JE arguing the claimants had exaggerated the impact on domestic rights. He agreed with the taxonomy of Dominic Chambers QC (‘DC’). Category 1 rights would just carry on in effect after withdrawal. Category 2 rights require negotiation with other states. They do not fall within domestic law anyway. LCJ: ‘Why aren’t they conferred in domestic law through the treaties?’

JE said that it was the ‘foreign transposition’ that was not within Parliament’s gift.’. The LCJ then said ‘the point is that they are rights to which the citizen of the UK is entitled … and therefore will be a right, because Parliament cannot restore it, that will simply go on the conclusion of the agreement’. JE said that may or may not be right but… ‘I can leave that to Mr Coppel’ (p 180).

The MR then asked about a hypothetical Regulation that is effective without primary legislation. He asked why that was not the kind of right that would be abolished but which a UK citizen enjoyed by being in the EU. JE said that you had to be careful about stuff that requires domestic implementation. Secondly it depends what happens in the negotiation. If you say that if you ‘fire the gun and then they all disappear off, those points are right… but that is on no realistic basis what is going to happen’. The MR then said ‘you have a problem there because…even if you negotiate with other Member States… the content of the right will be determined by different bodies’. JE replied that the overarching point was that Parliament had allowed the prerogative to continue in the knowledge of these ‘very defects’ (p 182).

JE then said that ‘you can say in technical terms they are going to be different rights because they will be sourced in domestic law…but that depends on negotiation’. He said that the court should not proceed on ‘unrealistic assumptions’. The answer on Category 2 rights is that it ‘cannot be known at this stage whether some substantively equivalent right will be in place’ (p 184).

As for Category 3 rights, JE said that the LCJ put to him that they would ‘inevitably go’ and that a ‘different person will be determining the nature and content of the right’ and he referred to the example that ‘Lord Pannick kept coming back to’ which concerned being and voting for MEPs. JE said that ‘in relation to all of those, of course the position is that they would be lost after withdrawal’ (p 184). JE said that ‘there is nothing in the inevitability, as it were, of those rights being hollowed out, on which to base a necessary implication that the prerogative has been abrogated in a relevant respect’ (p 185). LJ Sales said that either by the 2015 Act or construing the treaties, action remains within the royal prerogative.

The LCJ then repeated the problem that ‘if you conclude an agreement or you negotiate a treaty, what can Parliament do about it?’ JE said that ‘undoubtedly there will be some rights in legal theory which at the end of the two year period will drop away’ (p 187). JE then claimed that there was no ‘democratic deficit that meant that Parliament has removed the prerogative’ (p 189).

JE then dealt further with Thoburn and also with his submission that ‘great clarity was needed before Parliament could be said to have restricted the prerogative’ (p 193). He also denied that the fact that minor areas required legislative action meant that the larger ‘beast’ could roam free. He denied that there was any coherence to the scheme and therefore it was feasible for the minor areas to require legislation but the big issue of withdrawal could still fall under the prerogative (pp 194-5). The LCJ then asked whether the logic of JE’s position meant that the Crown could negotiate the ‘entirety of the withdrawal agreements without any parliamentary approval at all’.

There was then a discussion of Rees-Mogg again where it became clear that JE did not accept that abrogation could be by express terms or necessary implication. JE said that the AG’s submissions were that express words were necessary. The LCJ said that JE’s position was that ‘the EU is the exception to the general rule in De Keyser’ (p 201).

JE then said that constitutional conventions had been discussed but said it would not be appropriate for the court to start enforcing conventions.

The final two issues were justiciability and the remedy.

JE fairly quickly conceded that justiciability was not an issue, although he addressed Blackburn and Laker first as well as mentioning CCSU. He said that ‘the court can rule on the existence or otherwise of the prerogative’ (p 207). He said that he had to raise it because some of the parties had said the ‘decision’ had taken into account irrelevant considerations.

On relief, JE claimed that the effect would be to force the Secretary of State to introduce a bill to Parliament, if granted. The LCJ said that they ‘must be able to say the Crown has no power to give notice under Article 50’. JE suggested that the case law did not agree. The LCJ asked on five separate occasions what the court was supposed to do if they found that the Crown did not have the power. The MR also intervened to say that ‘if something is justiciable there must be a remedy’ (p 214).

The court rose at 4.30pm and indicated that the third day would start at the more normal time of 10.30am and would end a little early to allow the judges to discuss their decision.

The report on the proceedings from the third day will follow in due course.

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, Day 2’, U.K. Const. L. Blog (20th Oct 2016) (available at https://ukconstitutionallaw.org/))

14 comments on “Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Day 2

  1. Sean Feeney
    October 20, 2016

    Patrick Green QC did far more than declaim “the ‘extraordinary’ fact that in much smaller cases there would be a copy of the actual decision with clear evidence of who took the decision, what the content was, when it was taken, and the grounds, none of which was revealed in this case (p 42).”

    He said (p.42), to a Lord Chief Justice who has issued a discussion paper on this very issue:

    “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.”

    See the Lord Chief Justice’s 28 April 2016 DEFENDANT’S DUTY OF CANDOUR
    AND DISCLOSURE IN JUDICIAL REVIEW PROCEEDINGS A DISCUSSION PAPER

    https://www.judiciary.gov.uk/you-and-the-judiciary/you-be-the-judge/

    For background on the duty of candour see the Treasury Solicitor’s Department January 2010 Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings.

    The duty of candour, and the TSoL guidance, has been extensively discussed in the journal Judicial Review.

    I believe fault, if fault there be, lies not just with the defendant.

    The issue was raised in the 4 October 2016 Clarificatory note issued on behalf of the People’s Challenge interested party.

    Extraordinarily, none of those on the claimants side appear to have made any application for specific directions for disclosure.

    Unless there was a lawful domestic decision by the UK to leave the EU there can be no power to notify under Article 50(2).

    Does the UK’s constitution allow notification of an antecedent decision which is a nullity or that is void for error of law?

    Whatever the general position in international law, the CJEU would clearly have competence to rule on whether the lex specialis in Article 50 can be invoked if a domestic court has found a purported Article 50(1) decision was not in accordance with the constitutional requirements of the UK.

    The clarificatory note ends “Rather than being common ground between the parties, the question of whether a constitutionally valid decision to leave the EU has been taken, and who may lawfully take that decision, is one of the issues that the Court must decide in this litigation.”

    Which begs the question: how can the Divisional Court proceed to judgment without the identified as missing by Patrick Green QC: “a copy of the actual decision with clear evidence of who took the decision, what the content was, when it was taken, and the grounds”.

    • Paul Walker
      October 21, 2016

      “Extraordinarily, none of those on the claimants side appear to have made any application for specific directions for disclosure.”

      Maybe the answer is that the claimants did not appreciate that the Government would assert that a decision had already been taken? And by the most bizarre concatenation of pre- and post- referendum statements (aka proclamations?). After all, if a decision was taken back on June 24, which is what the Government is now asserting, why hasn’t notification been given to the EU as per the UK’s obligation under Article 50(2)? It is understandable why the claimants complained of a lack of candour.

      In the end, nothing today turns on the issue: the claimants are arguing that the decision is or will be defective for lack of an Act of Parliament, which is all the Court is being asked to rule on. If it is also defective for ambiguity and uncertainty, that presumably is for another day. Now that this case has woken Parliament up to its responsibilities, we can perhaps expect the Government to formalise the decision in a meeting of the Privy Council or the Cabinet. And (per Bacon’s Abridgement) a proclamation under the Great Seal?

  2. Sean Feeney
    October 20, 2016

    At page 210 the Lord Chief Justice states “There was the request for the decision today” so he appears to be treating Patrick Green QC’s raising of the duty of candour at page 42 as an oral application for specific disclosure.

  3. Sean Feeney
    October 21, 2016

    Thanks Paul.

    I don’t think it is at all clear that the Government is now asserting that “a decision was taken back on June 24”. That is what I am asserting, on a Pepper v Hart reading of the 2015 Act: that the referendum was the UK’s statutory decision to leave the EU.

    There are two claimants but other parties supporting their claim have raised public-law challenges to the decision to leave. Lead claimant Miller adopted their submissions in oral legal argument.

    The reason for the duty of candour is the inequality of arms between claimant and public-law defendants, who can hold information that the claimant is unaware of.

    It is not at all unusual for new grounds to be argued in judicial review, sometimes successfully, when information is disclosed.

    What I find extraordinary is the that the claimants appear not followed through their own apparent complaint about lack of candour, and not that the claimants appear to be making that complaint.

    • Paul Walker
      October 24, 2016

      I think the A-G has asserted that a decision was taken back on June 24.

      On Page 59 of the 17 October transcript, the A-G said

      “In establishing whether a valid decision to leave the European Union under Article 51 on the treaty of the European Union has been reached, ….. it may assist the court if I set out how that decision has been reached.” 


      He then recites six pre and post referendum statements, ending:

      “Fourthly, the then Prime Minister made it clear on 24 June that the will of the British people expressed in the referendum result would be respected and acted upon.

      Fifth, on the resignation of David Cameron as Prime Minister, the current Prime Minister announced her candidacy, saying she would also act on the result of the referendum.

      Sixth, on becoming Prime Minister, Theresa May has made it clear repeatedly that the government will deliver the departure of the United Kingdom from the European Union and statements of other ministers have confirmed the same.”

      On the footing that the A-G is asserting that a decision to leave requires no more formality than some statements by the Prime Minister, then logically the first such statement made by Mr Cameron in the street outside No 10 on June 24 following the referendum result was sufficient – in the AG’s mind – to constitute that ‘decision’ to leave. Anything further said by Mrs May was merely confirmatory of the decision taken by Mr Cameron.

      If you combine (a) the A-G’s assertion that a decision has been taken, with (b) the UK’s obligation under Article 50(2) to give notice of the decision – now 4 months late – and (c) the A-G’s statement that, as a matter of firm policy, once given a notification will not in fact be withdrawn (p64) [if it could be – the claimants assert it cannot be], in the A-G’s mind there is nothing left to discuss and the claimants have brought their case too late.

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