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Day 3 started at 10.30am on 18 October 2016. James Eadie QC continued his submissions followed by Jason Coppel QC for the Government. Lord Pannick then replied followed by Dominic Chambers QC, Helen Mountfield QC, Patrick Green QC and Manjit Gill QC. Mr Coppel QC then briefly replied to the replies. The court rose at 3.40pm and reserved judgment to a future date but in any event ‘as soon as possible’. A link to the complete transcript of Day 3’s proceedings is here.
James Eadie QC (‘JE’)
JE continued his submissions from yesterday. He said that he would spend his allotted time on the issue raised by the Lord Chief Justice (‘LCJ’) yesterday which was how the process of parliamentary supervision would work. He said he would then hand over to Mr Coppel. JE asserted that there would be ‘considerable further Parliamentary involvement in the future. (p 2). He said that involvement ‘tended against’ the argument that the start of the process cannot be the subject of the exercise of the prerogative.
JE then said that if there was an Article 50(2) withdrawal agreement there would necessarily be a treaty and that treaty would fall under the Constitutional Reform and Governance Act 2010 (‘CRGA’). LJ Sales then asked if it would fall under the European Union Act 2011 (‘the 2011 Act’). JE said he would come to that, but no. JE said they were mutually exclusive regimes. JE pointed out that the CRGA was only applicable to treaties that are subject to a formal process of ratification. CRGA lays out a series of steps including a ‘double negative’ resolution procedure.
The LCJ then asked if this had ever been done because it was critical that if there was an agreement and the two year trigger did not operate then there could well be parliamentary approval.
JE said that he had to be careful to say that an agreement was ‘likely’ because he could not be sure it would happen. He said that the ‘overwhelming likelihood’ was that there would be an agreement but it could not be guaranteed (p 5). That treaty would be subject to the ‘resolution procedure’ in the House of Commons. The LCJ asked whether if there was a final agreement it would be ‘subject to approval by Parliament’. JE said if there was an agreement ‘which we expect there to be, the answer…is yes’. This statement made the national news and sterling rose, apparently as a result, although cause and effect on the currency markets are notoriously difficult to isolate.
The LCJ then asked what would happen if Parliament wanted to say no. JE said that if the House negatively resolves twice than the treaty cannot be ratified. JE said that the Government view was that this treaty will go through the process in the usual way. The LCJ then pondered whether the UK and the EU could agree it did not need ratification. JE said they could in theory. JE then reiterated that the Government believed that any such agreement would be subject to ratification and therefore fall within CRGA. The LCJ then pointed out that ‘to state the obvious’, such a process was ‘not parliamentary approval in the form of primary legislation but in the form of resolutions of both Houses’ (p 9).
JE then moved on to the Great Repeal Bill (‘GRB’) which he asserted was part of the ‘central role’ that Parliament would have in the ‘amendment of domestic legislation’. He claimed this was ‘consistent with his sequencing point’ and said that Parliament will have the opportunity to decide whether rights would be retained following withdrawal (p 10). JE said the great repeal bill will drag in rights where possible current EU law rights that are not already enshrined in legislation. This will add a ‘swathe’ of rights to the existing domestically approved rights. He said that legislation will eventually be required (presumably the GRB) to effect further alteration. He repeated that it was necessary to be clear about the extent of parliamentary involvement in this process before rights are withdrawn.
JE said leaving aside the ‘hollowed-out rights’, if there were other rights that ‘fell through the cracks’ one needed to be ‘realistic’ about how parliamentary processes are ‘actually going to work’. They are going to be dealt with by consideration of specific and separate policy areas, rather than focusing too much on what the source of those rights happens to be. The LCJ then asked if the GRP will deal with Category One rights which are rights which are ‘within the control of Parliament’. JE said it will deal with Category 1 and some of Category 2 (Author note: Category 2 rights are rights that could only be salvaged with the agreement of third party states). JE said that what would be domesticated would be rights that might be ‘directly applicable from Europe’ (p 14).
The LCJ then asked whether the rights of say, free movement, and ‘what you call the hollowed-out rights, the category three rights (Author note: Category 3 includes rights that are inevitably lost by exit)… the ability to vote for the European Parliament, are you saying those would be subject o parliamentary control because… if the treaty were subject to ratification, Parliament could reject the agreement of the executive?’ (p 14). JE said that ‘yes, that was the answer to those ones’. JE said that there would be a question about the rights not covered in the agreement and ‘whether those would simply be necessary incidents of leaving the club’.
LJ Sales then asked how CRGA 2010 are relevant to interpreting the European Communities Act 1972 (‘ECA’). He asked JE to address the fact that ‘one of the arguments you face is the ECA impliedly excludes the prerogative … to seek to withdraw from the EU’. JE said it was difficult to take account of the later legislation because it was part of the overall statutory scheme. JE said that the ECA did not impliedly abrogate the prerogative.
JE then turned to the 2011 Act and said CRGA was only relevant if the 2011 Act did not apply (p 19). The question is whether the new agreement replaces the TEU or TFEU. If it did that would be a ‘silver bullet’ because there would be an Act. JE said however the agreement was not that type of replacing agreement. LJ Sales asked why it was not a treaty that replaced the TEU or TFEU. JE said it was a ‘different species of agreement’ (p 22). It is a ‘different beast’. The LCJ asked if the fact that Article 50 was passed without reference to the 2011 Act any agreement is also irrelevant to that but in fact operates under CRGA. JE agreed to that (p 24). The MR then intervened to suggest that this also was reflective of the important distinction between amendment and withdrawal.
Jason Coppel QC (‘JC’)
JC said he was dealing with submissions made by the interveners. The first two issues he proposed to deal with were; 1) loss of EU citizenship rights 2) devolution statutes. He started by claiming that the interveners had overstated the effect of the decision to withdraw and the effect that they say would inevitably follow (p 30). He said that UK citizens had very few rights as EU citizens as a result of the ECA. He said that none of these would be affected by notification and all could be preserved if Parliament chose. He then sought to argue that the only relevant rights were in fact against the UK state and against other individuals. He argued that the right to live in France was not included because that was not in fact a right enjoyed in the UK and enforceable in a UK court. It was enforceable against the government of France and their international obligations.
The LCJ pushed JC on whether those rights arose from the fact of EU citizenship. JC said the only relevant UK rights were the right to leave and return which would survive exit if Parliament wished to do that. JC said that the ECA only confers rights to be ‘used and given effect in the UK’ (p 34). If a UK citizen is expelled wrongly from France, his remedy lies in French law not the ECA. The ECA itself does not confer the right to live in France because that would be to interfere in the ‘obligations of a foreign state’ (p 35). He further claimed that the EU citizenship right operated solely in international law so that if one sues the French government in the French court, you in fact rely on French law.
JC summarised the point by saying that it followed that none the Category 2 rights would in fact be lost because they were never conferred by Parliament in the first place. (Author’s Note: Category 2 rights are rights that could only be salvaged with the agreement of third party states). The only relevant rights were to leave and return. JC claimed that it undermined the claimant’s case because if a right is not within the gift of Parliament, that is a ‘sure sign that it wasn’t conferred by Parliament in the first place’ (p 37).
LJ Sales then asked whether it was in fact in Parliament’s gift because the ECA had to be passed to comply with the directly effective rights acquired on joining. JC said that he did not accept that it was a condition of ratification that legislation had to be passed. That came later and only when European law was extended. It was therefore not a condition of ratification that legislation be passed.
JC then listed some rights which connected to citizenship including the right to vote in European elections and claimed that these were in fact national rights to vote in local elections. The LCJ then asked whether the Crown could alter these rights because ‘Parliament has control over these rights’ (p 40). JC agreed that EU citizens in this country could enjoy those rights but the right of UK citizens to vote in, for example, Romania was not conferred by the ECA. The LCJ said he was ‘slightly baffled’ because he did not understand ‘why the content of these rights are not controlled by Parliament’. JC repeated that any loss of rights to vote abroad were a matter for that country’s law. The LCJ then asked how this connected with the AG’s argument. ‘If the Attorney …is right, then you can withdraw… if the argument is wrong, why does this help you? That is what I am baffled by’ (p 43).
The MR then asked whether if JC was in fact simply dealing with the broad principle that ‘you can’t by executive action withdraw a right conferred by statute’ and that this argument only dealt with that point rather than the ‘wider point about the implication arising from control over amendment of statutes’. JC agreed. He then listed some rights including the right to approach the Commission for help and argued that the latter was not a right but a duty placed on the Commission under the Treaty. It followed that no right was therefore created under the ECA. He suggested that a similar argument could be made against the procedure of appealing the CJEU and is not a right conferred by domestic law. After a short break he went through a list of similar rights claimed to be inevitably lost by the claimants.
LJ Sales then asked whether French citizens would have these rights in UK law. JC agreed but argued that those people had protection under the Equality Act not to be discriminated against on the grounds of nationality. Notification and even withdrawal would not change that. JC listed a series of rights to healthcare, the EU Charter and pay which he said would in fact be unaffected. He also mentioned the rights of the ‘Zambrano carers’, represented by Mr Gill QC, whose rights he claimed would also be unaffected because they were in domestic law.
Dealing with the Categories of rights, JC then argued that Category One rights are already in domestic law or can be transposed so there would be no loss of rights. Category Two contained rights that were never actually conferred by Parliament so it did not matter if they were not ‘in the gift’ of Parliament (p 50). The LCJ then asked how a British citizen acquires the right to free movement and citizenship. JC said that they were simply a right in international law or the domestic legislation of the relevant foreign country.
JC then addressed the Category 3 rights (Author note: Rights that would inevitably be lost). JC said ‘It is a small category in my submission’. The MR then asked a question to clarify something about the Category Two rights. JC dealt with that before saying ‘the point of my submission… is that the category of domestic law rights which will inevitably be affected by notification is very small’ (p 54). He referred their Lordships to Mr Eadie’s arguments that this related to the rights to ‘use the institutions of the club’. On devolution, JC said the Act assumes but does not require membership of the EU (p 57). On the Act of Union, JC said that there was no difference between Scottish and English on this issue.
Lord Pannick QC (‘LP’)
LP began his reply by emphasising his ‘core points’ (p 58). The first ‘preliminary point’ was that the defendant accepted that notification will inevitably result in the treaties no longer applying. The second ‘preliminary point’ was that there was ‘no dispute’ that subject to Parliament might take, the consequence of the treaties not applying meant that rights would be ‘stripped away’. He reiterated that there was no dispute ‘that once notification is given there is a direct causal link between notification and removal of statutory rights’.
The third preliminary point was that notification will inevitably cause some statutory rights to be destroyed. The first category he addressed was those rights which Parliament simply could not maintain (Category 3). LP argued that it was ‘quite sufficient for our purposes that there is one such right’ (p 59). He emphasised he did not need to show dozens or hundreds of rights lost. He listed three examples of inevitably lost rights. The first right is the right to stand and vote in elections to the European Parliament under the 2002 Act. The second is the right to have her case referred to the CJEU on any issue in EU law. The third is the right to seek assistance on any matter from the Commission. He reminded the court that JC had said the category of inevitably lost rights was small but there were at least three of them.
As for the other category of rights (Cat 2), LP said that the power to grant those rights was taken out of the hands of Parliament by notification. Even if they might be saved, unless third parties agreed to them, they would be lost. He also argued that supervision under CRGA and the 2011 Act were irrelevant because by the time they could be relevant, the same point would apply. It would be out of Parliament’s hands. He also argued that even if Parliament refused consent to any agreement the UK would still leave the EU. Parliament could not reverse the notification.
The LCJ then asked him to confirm that it was his case that if there is no authority from the 2015 Act, it follows that Parliament has to take the decision. LP agreed. The MR then went through the three rights with LP and asked if those rights arose outside the ECA. LP said the voting right arose under the 2002 Act as well as the ECA but notification would mean it was frustrated and stripped away. LP also mentioned the Competition Act and a junior, Ms Howard, helpfully pointed out s 58 of the Competition Act 1998 which mentioned the Commission specifically.
LP then turned to his fourth ‘preliminary matter’. He said the defendant’s case must be that as the prerogative operated in the international plane, the minister could strip all the relevant rights away without any reference to Parliament. He mentioned that if the 2010 Act (CRGA) did not apply, and JE had accepted it did not apply, then if there was no agreement in two years and no extension then all the rights could be removed by the minister without reference to Parliament as a matter of constitutional principle. He was careful to say that he was not saying this would happen but if no agreement was reached then there was no need to go to Parliament.
The final preliminary point was about the breadth of the use of the prerogative power. It operates on the international plane. LP argued that it cannot create rights and duties in national law and equally cannot be used to defeat domestic law rights. He then returned to the Tin Council case and argued that while it is true that the defendant has a broad prerogative power that is precisely because it cannot affect domestic law (p 75). LP argued that it affected the limits of that power. He distinguished the interpretation of rights and double taxation rights and argued they were different to this case. LJ Sales pointed out that the latter used a Henry VIII clause and was used with parliamentary authority.
LP then turned to the specific arguments made by JE.
The first and main argument from JE was that prerogative may be used to destroy rights unless Parliament has stated in the statute itself that the prerogative has been removed. LP said that put the proposition 180 degrees the wrong way round. He cited Tin Council, the Case of Proclamations, the Bill of Rights 1689 and indeed parliamentary sovereignty itself. He then cited Walker v Baird again but LJ Sales said that he did not think it helped the submission very much because it relied on a concession in that case by Counsel. LP said he relied on it because it was cited with approval by LJ Lawton in Laker. LP then relied on the principle of legality from Simms (p 85). He pointed out that even Parliament cannot take away rights unless it is explicit, and it would be remarkable if the executive could.
LP then mentioned that the MR had asked about taking away common law rights and he cited two cases where he argued that common law rights could not be taken away without express statutory permission then it would be extraordinary if the executive could take away rights granted by Parliament. The cases were Witham and Pierson.
LP then argued that JE’s version of the lawful use of the prerogative ‘reversed’ the true principle’. He said the true principle was that the minister had no power to destroy rights without Parliament conferring power to do so. He discussed De Keyser and Rees-Mogg. On De Keyser, LP said the case did not address the principle for which he was contending. De Keyser establishes that where a set of defined conditions is imposed on a minister, he cannot simply disregard the conditions using the prerogative. The LCJ suggested that a difference with that case was the extent to which the relevant prerogative of defence of the realm survived whereas in this case ‘there is no power to alter fundamental rights’ (p 94). The LCJ also said ‘we are concerned with a case where there is no prerogative power’. The LCJ then suggested that LP was looking at through a ‘different prism’. The question was whether something gives the power, rather than enables the power.
The court then rose for lunch.
After lunch, LP turned to Rees-Mogg. He argued that no rights were taken away using prerogative powers in that case. The ratification in that case in fact had no impact on domestic law. In fact, in that case Parliament had already included the Maastricht treaty. So it was not a case about removal of rights or pre-empting Parliament. LP then turned to ex p Northumbria. He said it also had nothing to do with the removal of statutory rights.
LP then turned to the statutes that the AG and JE had taken the panel through. LP argued that it had not been submitted that any legal authority to remove rights had been conferred by those statutes. Instead they had argued that those statutes had not removed any prerogative powers. LP said that was ‘nothing to the point’ and said it is ‘plainly the case’ none of the statutes clearly authorise the minister to remove statutory rights (p 102). He argued that the AG had said merely that the 2015 Act did not remove rights not that it conferred any power.
LP then said that the government’s actions may be justified or reasonable as the AG claimed but he said the legal question was whether it had the power. He also argued that the fact that Parliament has many means of controlling the executive did not affect the legal question. He then said that, on the academic authorities, both sides had extracted the arguments that helped them. The LCJ said ‘that is apparent’ (p 106). LP then reiterated that he had an alternative argument that the ECA states that any alteration to the treaties requires parliamentary authority. The MR asked if had to show implication by necessity to make this point. LP agreed that was true if he was wrong on his main test. He then argued that Parliament should not be presumed to ‘strain at a gnat but swallow a camel’ and that it would be a camel to allow the minister to make sweeping changes but require legislative approval for minor amendments (p 109).
LP then dealt with non-justiciability but the LCJ stepped in to say ‘as far as I understand it, justiciability is no longer an issue’ (p 111). Finally he dealt with the constitutional impermissibility of the remedy sought. LP said the amended declaration sought to ‘mollify the concern’. The LCJ then said that ‘it would seem slightly unreal’ if they accepted his argument not to grant the declaration because the terms of the judgment would make it clear what the limits of the prerogative were. LJ Sales then queried if LJ Leveson PQBD had given formal permission to bring the action. LP said there would be lot of disappointed people if it turned out he had not, but he formally sought that from the court.
Dominic Chambers QC (‘DC’)
DC argued that the correct starting point was Articles 1 & 2 of the Bill of Rights. He said that executive action which overrides or sets aside legislation breaches parliamentary sovereignty. He quoted Lord Parker in the Zamora saying that ‘the idea that the executive has power to alter the law is out of harmony with the principles of the constitution’ (p 117). He then went on to list four concessions made by the defendants:
DC then said that ‘with those concessions’ he had:
DC said ‘that is all I need’ (p 119). He said he did not need the prerogative or the ECA. It was enough that executive action was going to lead to the loss of rights. The LCJ then suggested that DC must also be relying on the absence of any argument that the series of European Acts ‘do not confer any authority’. The LCJ then said ‘we will check the transcript carefully’ but he said that DC was asserting that ‘there was no contention that authority to leave was given by any of the European communities acts’. DC said he that that was correct. Dc then said that the sovereignty of Parliament put an insurmountable roadblock in the way and ‘that is the beginning, the middle and quite frankly the end of the defendant’s case’ (p 120).
DC then repeated that the concession that the 2015 Act provided no power was an important one because it meant that the defendant could have woken up one morning and triggered Brexit ‘without more’. DC then said that the AG had said circumstances had changed since 1975. DC said that ‘it cannot be the case that the prerogative was somehow constrained in 1975 but somehow bounced back in 2008 or 2011’ (p 122). DC said JE disavowed the idea that the prerogative bounced back. DC then argued that in evidence to Parliament the Government has said that the Lisbon Treaty made no difference to sovereignty.
Finally DC said that the list of treaties can be amended by order in council. DC said that Parliament has in fact ‘pre-determined’ that it must be involved in the mechanism for any changes to treaties of whatever kind.
Helen Mountfield QC (‘HM’)
HM suggested that there were two fundamental questions in reply to the defendant’s points. The first was the Bill of Rights (‘BoR’) and the second was the existence and extent of the prerogative. She said s 1 of the BoR was not about rights but about suspending law. She claimed the defendant had no answer as to how triggering Article 50 in effect dispensed with laws. She adopted the argument that this would still be unlawful even if Parliament could step in and stop the process because the BoR argument depended not on the destruction of rights but on the authority of Parliament.
HM’s second point concerned the defendant’s argument that making and unmaking of treaties was a wide power including withdrawing rights otherwise entrenched in law and she quoted the transcript of JE saying that (p 130). HM argued that this breached the dualism of the UK because the power to conduct foreign relations was only possible, consistently with the BoR, precisely because those powers are irrelevant to the conferral or removal of rights in national law. HM then quoted Lord Bingham in Bancoult as requiring the courts to find a precedent when there was a dispute over the prerogative. ‘If it is law it will be found in our books. If it is not found there, it is not law’. LJ Sales asked whether that was relevant since there was no dispute over the prerogative of foreign affairs existence. HM said that there was no prerogative to make treaties that interfere with rights.
HM then argued that the 2011 Act put parliamentary sovereignty beyond question. It showed that Parliament wanted control over EU competence. She suggested it was like a ‘thermostat’ (p 136). The executive cannot turn the heat up without our approval. Nor can it turn the heat down. It is impossible to say that the minister can turn the heating off altogether with no authority at all. ON devolution statutes, HM argued that those statutes were passed on the assumption that the underpinning features of the legal system would continue until Parliament withdrew them. She argued this could not be changed by prerogative act (p 138).
Patrick Green QC (‘PG’)
PG first addressed a point raised by LJ Sales as to the contest between two views of the constitutional background and argued that there was no contest because parliamentary sovereignty is the cornerstone of the constitution. His second point was that it was generally agreed that shortly after the 1972 Act, it was not possible to withdraw unilaterally. He argued that it was assumed by all that ‘Parliament would decide’. He said that the defendant’s contrary submission was ‘wholly without precedent in any of the cases I have been able to identify’ (p 142). He further argued that there was express abrogation in the 2011 Act
On the 2015 Act, PG said the referendum was consultative only. He then said that he had found JC’s submissions ‘surprising’ both in the sense that advocates use the word and also in the sense that ‘we were all surprised’ (p 144). He said this was because it overlooked the nature of the ‘unique legal order’ in the EU. PG then claimed that the rights are freestanding and even if replaced by another statute is not an answer to those rights being taken away. The LCJ then asked about JC’s argument that the ECA only deals with rights in domestic UK law. PG said that ignored the nature of the unique legal order and also the ‘pooled competence which results from the ECA’ (p 147). PG also pointed out that other nationalities acquired rights according to the pooled competences.
The LCJ then asked if he was going further than LP because LP ‘has already found two [rights] that exist under domestic law’. PG said yes that the question of the further rights is fundamental to the ‘entire European Union architecture’ (p 148)
Manjit Gill QC (‘MG’)
MG argued that that defendant was trying to have it both ways by arguing that the rights would continue after withdrawal and that the GRB would re-enact rights on withdrawal. He said that either the current law is inadequate or it is not. He asked why they needed the GRB if the current law is adequate. He said this was an admission that the current law is inadequate. He also argued that the use of the word ‘exaggerated’ (Authors note: JC had said that the claimants had ‘exaggerated’ the extent of the lost rights) meant that the defendant admitted that there would be consequences, but that the claimants had exaggerated them. It followed that the decision to take steps to put something in place admitted that the claimants were right.
MG also argued that notification and withdrawal could be very swift in theory – it could even be the next day if the prerogative could be used as the defendant claimed. MG next claimed that there had been no response to his submission that criminal liability would inevitably follow as a consequence of notification. MG then argued that ‘EEA regulations’ became pointless on exit because ‘there is nothing for it [such regulations] to latch on to’ (p 154). The regulations might as well be ‘writ in water’.
Jason Coppel QC (‘JC’)
JC was given an opportunity to reply. He did not challenge any of the concessions suggested by Counsel for the claimants. He also did not challenge the claim by DC that the defendant had never claimed any kind of statutory power in their submissions. JC addressed Witham and Pierson. He argued that this case had nothing to do with common law rights. He said the case turned on ‘whether a recognised and well-established prerogative power has been abrogated by statute’. He said that ‘there is no need to argue about whether it is permissible for the Crown … to remove domestic legal rights … because we know that the UK’s commitments on the international level are not capable of altering domestic law’ (p 157). He repeated that the notification does not repeal any domestic statute.
LJ Sales then put to JC the concession made by JE that if there is a withdrawal from the EU, that ‘will denude the practical effect of s 2(1) ECA which does have effect in domestic law’. JC said ‘what it doesn’t do is change domestic law’. LJ Sales said ‘If you say denuding it of effect doesn’t change domestic law then I follow the argument’ (p 160). JS said that the principle was the ‘sequencing’ that JE had put to the court.
The court rose just after 3.40pm.
Robert Craig, London School of Economics
The author would like to thank Tom Poole 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 3’, U.K. Const. L. Blog (24th Oct 2016) (available at https://ukconstitutionallaw.org/)).