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John Finnis: Terminating Treaty-based UK Rights: A Supplementary Note

john-finnisEditors’ note: This is cross-posted from the Judicial Power Project website and forms the body of a short paper published today by the Project.

In a Judicial Power Project paper of 26 October, Terminating Treaty-based UK Rights, I argued that UK law and constitutional practice about double tax treaties provides a clear and uncontroversial parallel for the process whereby the Government, in the exercise of its prerogative (non-statutory) power in foreign affairs, will give notification under TEU art. 50 of the UK’s intent to leave the EU.  This notification will be substantially identical to the notification that can be given by virtue of, say, art. 29 of the UK-Russia double tax treaty, which would result (after the time specified in the article) in the termination of the treaty and thereby the elimination of rights (quite numerous) that many UK citizens and others enjoy under UK statutory provisions dependent (for their effect) on the treaty.  No one doubts that notification under art. 29 can be given without any Parliamentary approval, let alone a statute.  So no one should doubt that notification under art. 50 TEU can likewise.

Since the Government failed, in Court in the Brexit litigation, to point out and describe this parallel and precedent with the precision needed, the paper of 26 October sought to do so. A few readers have doubted that the Government could have really have failed on this pivotal matter, or that the Court needed guidance on it.  So this Supplementary Note sets out in more detail the logic, intent and legal effect of the slightly complex and unusual structure of interlocking parliamentary statutes, executive orders, and international agreements and notifications.

Oral Argument

In tracing this structure, it may be helpful to begin by noting very clearly just where and how oral argument about it went astray.

On Day 2 (Monday 17 October) at p. 145 line 22 of the transcript, James Eadie QC was asked by the Master of the Rolls:

[2: 145. 22] Can you give me an example in practice of how a double taxation treaty negotiation, withdrawing a benefit under it without legislation, could be applied by analogy here?  Can you give me, rather than taking the general principle, can you give me an exact example of such a situation?…

[146. 4] Because…if you have a double taxation agreement, it might be something along the lines…of saying that you can make a deduction for British taxes in relation to something that occurs elsewhere…

[146. 16] There, let’s assume that the Crown negotiates something which involves a curtailment of that right.  It would still need Parliamentary intervention to remove the right, by way of some Finance Bill, from a person in this country to make that deduction.  That would be necessary. …  [Here and throughout emphasis has been added.]

Mr Eadie:  [147. 1] Yes. … the double taxation treaties do indeed involve… [147. 6] a bespoke process by which you do have to go back to Parliament, but afterwards.  Much of this is therefore a sequencing involved.  What happens in terms of sequencing is that the double taxation treaty is renegotiated or different provisions are arrived at.  Then, as my Lord says, there is interposition into domestic law and Parliament reacts. …. [147. 25] It [the renegotiation and new agreement] doesn’t preclude Parliament from then saying: well, actually, we don’t much like the look of it; nor does it necessarily preclude – maybe my Lord is right in terms of that specific context – Parliament having potentially necessarily to alter the domestic scheme to take account of that new arrangement.

The Master of the Rolls: All I am saying is that all that shows (that particular example) is that a Parliamentary intervention – in order to give effect to what has been negotiated by the Crown and its prerogative power, in order to give effect to it, Parliamentary intervention is necessary and it is substantive.

Mr Eadie:  [148: 16]  My Lord, yes.  I don’t mind that…. For the purposes of my argument, I don’t mind that because in that context, whether it intervenes substantively or not to alter things, the fact of the matter is that the prerogative has been exercised in that way.  Now, that isn’t an example of, as it were, having a direct and immediate impact on to domestic law; it’s an example of the Crown exercising its power on the international plane to enter into an agreement which it then, as it were, presents to Parliament to say yes or no. …

Thus the opportunity was missed – the opportunity to give Etherton MR and the Court a clear account of the operation of double tax treaties/agreements in UK law, and to correct the misapprehension that taxpayers’ statutory rights to a deduction or tax credit would be unaffected by termination of the relevant treaty unless and until “some Parliamentary intervention… some Finance [Act]” had changed those rights.

In doing so, the golden opportunity was missed, of supplying what Lord Thomas CJ had been asking for, a few minutes earlier (2: 119.3-4), namely, some authority for the proposition that though treaty making cannot affect rights under UK law without a statute, “in the case of withdrawal from a treaty you can actually thereby affect rights that have been enacted in law” (2: 118. 13-15).  Counsel at first denied that he was relying on that distinction, that asymmetry between making and terminating.  Then, when reminded by Lord Thomas CJ that it was at the heart of the case (2: 118. 19-20), and pressed to answer the question (2: 118. 24 – 119. 1) whether “the Crown has the prerogative power to withdraw from a treaty even if that affects the rights that are accrued under domestic law”, counsel inevitably answered Yes – but with no explanation, authority or example.  (Any other answer would have brought a precipitate end to argument and fairly summary judgment for the claimants.)

So Etherton MR’s questions, minutes later, about double tax presented counsel with the opportunity to recover ground by giving some substance to his bare “Yes” – the opportunity to point to a fully practical, even homely example of the needed distinction between the domestic legal effects of making and the domestic legal effects of terminating a treaty – not simply renegotiating it (a different matter, on which both Court and counsel unfortunately focused).  We see the opportunity being missed, above at 147.1 and 148.16. The propositions of law embedded in Etherton MR’s question at 146.16-21 are mistaken.  Identifying the mistake provides the example that counsel needed to supply.  Here’s the slow motion identification.

Making and Terminating Treaty-based Statutory Rights

Statutory rights to a tax credit (or other deduction) reducing liability to UK tax, as rights “under the arrangements” made in a double tax agreement, stand on two legs (have two distinct necessary conditions): (A) the making of those arrangements by the bringing into effect of the relevant agreement between the UK and, say, Russia; (B) one or more of the scores of provisions in Part 2 (ss. 18 to 134) of the Taxation (International and Other Provisions) Act 2010 [TIOA] that create statutory rights to tax credit, rights having the content and extent specified in those treaty-based arrangements, and additional legal machinery and effect supplied by those TIOA provisions.

The First Leg: Bringing into effect the relevant tax treaty

The arrangements made in the double tax agreement have effect on, again, three distinct bases (three distinct necessary conditions):

(a) the terms of the treaty,

(b) an Order in Council  (made only after the House of Commons has seen the draft of it and resolved to ask that it be made) declaring that the specified treaty makes arrangements for affording relief from double taxation and that “it is expedient that those arrangements should have effect”, and

(c) TIOPA s. 2 which on the making of such an Order in Council gives effect to the arrangements in that treaty, and does so “despite anything in any enactment” (s. 6(1)).

As to basis (a), notice that UK double tax agreements contain specific provisions about their coming into effect: the 1994 UK-Russia treaty (Convention), for example, provides by art. 28 (“Entry into force”) that:

Each of the Contracting States shall notify to the other in writing through the diplomatic channel the completion of the internal procedures required by the law applied in that Contracting State for the bringing into force of this Convention. This Convention shall enter into force on the date of the later of these notifications and shall thereupon have effect: (a) in the United Kingdom: (i) in respect of income tax and capital gains tax, for any year of assessment beginning on or after 6th April in the calendar year next following that in which the Convention enters into force…

and so forth.  The “internal procedures” referred to in the passage here italicized are of course the laying of the draft Order in Council before the Commons, the Commons resolution, and the making of the Order.

As to basis (b), notice that the Order in Council is declaratory.  In our example: the Double Taxation Relief (Taxes on Income) (Russian Federation) Order 1994, SI 1994/3213 made on 14 December 1994 declares (“It is hereby declared”) by its art. 2 that the arrangements specified in the treaty (identified as the Convention set out in part I of the Schedule to the Order and the Exchange of Notes set out in part II of that Schedule) “have been made with the Government of the Russian Federation with a view to affording relief from double taxation…”, and that “it is expedient that those arrangements should have effect”. The Order does not purport to enact those arrangements, nor even to bring them into effect, though it is accurate to say – once they have come into effect by virtue of international actions under art. 28 – that they have been “given effect in UK law” by the Order in Council made under TIOPA s. 2. They came into effect on the international plane (and thus also in the UK) by virtue of the treaty’s art. 28 (above), on the date of the later of the respective UK and Russian notifications of conclusion of internal procedures.  Since the Russian notification was given years after our Order in Council, the treaty did not come into force until 18 April 1997, and its statutory effect in the UK was therefore (as defined by art. 28) only as from 6 April 1998 in respect of income or capital gains taxes.  That statutory effect has as its direct statutory basis the third of the three bases: TIOPA s.2 (or more precisely, s. 2’s substantially identical predecessor, s. 788(1) Income and Corporation Taxes Act 1988), an analogue of s. 2(1) of the European Communities Act 1972 [ECA].

As to basis (c), TIOPA s. 2(1) provides:

Giving effect to arrangements made in relation to other territories

(1) If Her Majesty by Order in Council declares—

(a)   that arrangements specified in the Order have been made in relation to any territory outside the United Kingdom with a view to affording relief from double taxation in relation to taxes within subsection (3), and

(b)   that it is expedient that those arrangements should have effect,

those arrangements have effect.

Notice that the “arrangements specified in the Order” are not simply arrangements made “in relation to” Russia but are, more importantly, arrangements (as the Order specifies) “made with the Government of the Russian Federation” and contained in a treaty that makes provision for its own effect and termination.  Notice also that s. 2 TIOPA does not purport to give effect to the Order in Council, but rather to the arrangements, arrangements which (as we seen) are those in the treaty, the terms of which are, for identification, scheduled to the Order.  Thus it could and did happen that the UK statutory effect began only, after an unpredictable lapse of time, years after the making of the Order in Council.

The Second Leg:  Statutory provisions making the treaty-based rights effective in tax assessment

Statutory rights to tax credits under those double-tax treaty arrangements (in the hypothetical raised by Etherton MR) stand on a second leg: any one or more of the provisions of ss. 18 to 134 of TIOPA.  In each case, the provision will be applicable because the section creates a statutory right the content and extent of which is defined by what credit is “allowed” or “proper” “under double taxation arrangements” that “have effect under” s. 2(1) TIOPA.

This whole jigsaw of legs and bases – of necessary conditions – for the enjoyment of statutory rights embodies and makes clear the “distinction” that Lord Thomas CJ put to counsel for the Secretary of State, the asymmetry between the bringing into effect of the double tax treaty and its termination.  Like the ECA, the TIOPA itself makes no provision for the termination of any of the treaties to which it gives UK legal effect.  In relation to TIOPA, those are the treaties given UK legal effect by s. 2(1) TIOPA because specified in Orders in Council to which s. 2(1) TIOPA applies.  In relation to the ECA, they are the treaties specified in s. 1 ECA and given UK legal effect by s. 2 ECA.  Just as termination of those EU treaties in relation to the UK is provided for in art. 50 TEU (given Parliament’s statutory approval by s. 2 European Union (Amendment) Act 2008), so termination of the UK-Russia double tax agreement in provided for in art. 29 of that treaty (given Parliament’s statutory approval by s. 2 TIOPA with SI 1994/3213):

29. Either Contracting State may terminate the Convention, through diplomatic channels, by giving notice in writing of termination at least six months before the end of any calendar year beginning after the expiry of five years from the date of entry into force of the Convention. In such event, the Convention shall cease to have effect: (a) in the United Kingdom: (i) in respect of income tax and capital gains tax, for any year of assessment beginning on or after 6th April in the calendar year next following that in which the notice is given….

No Parliamentary approval of any kind is required for the Crown to give notice of termination of the UK-Russia double tax Convention 1994. Thus UK and/or Russian persons and companies can find that they have been lawfully and constitutionally stripped of the extremely valuable UK rights that Parliament has conferred on them in, for example, TIOPA s. 134.  These “statutory rights” will have been destroyed by sheer executive action, a simple notification made under the 1994 Convention art. 29 and the prerogative of foreign affairs, without the slightest approval by Parliament  – nor even by a national referendum organized by Parliament for the purpose of approving or disapproving it.

As the paper of 26 October seeks to explain, the term “statutory rights” is systematically ambiguous.  The just mentioned “destruction” of “statutory rights” thus involves no defiance of Parliament’s intentions, but rather compliance with Parliament’s at least permissory intentions embodied in art. 50 TEU and in art. 29 of the UK-Russia treaty as envisaged by TIOPA s. 2(1) and approved by the House of Commons.  Moreover, the “destruction” leaves the statutory provisions establishing those rights entirely undisturbed.  For these are not provisions that by themselves define and confer rights.  Instead they are provisions that give UK statutory legal effect contingently to such rights as arise on the international (EU or double tax treaty) plane, and that track those rights as they come into existence and go out of existence by actions on the international plane.  In some cases, Parliament itself sees and approves the rights as they come into UK legal effect.  In some cases, only one House sees and approves them.  In none of the matters we have been considering does Parliament require that it or either of its Houses approve any termination of the rights that is the possible or actual or inevitable intended result of the actions of foreign governments or entities or of Her Majesty’s ministers’ in their conduct of the UK’s international relations.


A Further Parallel: European Parliamentary Elections Act 2002

The paper of 26 October said nothing about the complaint of Brexit case claimants about loss of their rights arising, they say, under the European Parliamentary Elections Act 2002, or arising under the law of or in other EU member states by virtue of EU citizenship.  This is not the place for extended analysis or discussion of those claims.  But in considering them, it may be helpful to recall that the valuable legal rights which would be destroyed by UK (or Russian) executive termination of the double tax treaty include not only the UK statutory rights exemplified by TIOPA ss. 18 to 134, but also the valuable legal rights enjoyed by UK citizens and residents (as well as Russian citizens and residents) under Russian law by virtue of the efficacy in Russian law of the 1994 UK-Russian double tax treaty while that treaty is in force and effect.

Just as the 2002 Act adds something specific to the effect of ECA s. 2(1) upon the Treaties listed in ECA s. 1, so too TIOPA ss. 18 to 134 add something specific – what I called above “additional machinery and effect” – to the primary operation of TIOPA s. 2(1), of making the treaties (scheduled to Orders in Council under it) part of UK law.  Thus: just as the Commons, by giving approval to art. 29 of the 1994 treaty, contemplated the possible destruction by sheer prerogative action of some or all statutory rights under TIOPA ss. 18 to 134, so too Parliament itself, by giving statutory approval to TEU art. 50, contemplated the possible destruction by sheer prerogative action of statutory rights including those in the 2002 Act.

Moreover, the 2002 Act discloses no positive intention that there be elections in the UK to the European Parliament, but rather the intention that if and when under EU law there arises an obligation or opportunity for Member states to conduct elections to that Parliament, then such elections shall be conducted in the UK in the manner specified in the 2002 Act.  Like TIOPA ss. 18 to 134, its operation and the machinery it provides were always intended to be wholly contingent on arrangements made on the international plane, arrangements well understood to be terminable for all purposes by prerogative actions (or the actions of foreign parties) on that plane, with no requirement of parliamentary let alone statutory intervention.

John Finnis FBA is Professor Emeritus of Law & Legal Philosophy at the University of Oxford and Biolchini Family Professor of Law in the University of Notre Dame.  He was Rhodes Reader in the Laws of the British Commonwealth in the United States in the University of Oxford from 1972 to 1989 and then Professor of Law & Legal Philosophy there until 2010.  He is a Fellow of the British Academy in the Law and Philosophy sections, an Honorary Fellow of University College, Oxford and a member of Gray’s Inn.

(Suggested citation: J. Finnis, ‘Terminating Treaty-based UK Rights: A Supplementary Note’, U.K. Const. L. Blog (2nd Nov 2016) (available at

20 comments on “John Finnis: Terminating Treaty-based UK Rights: A Supplementary Note

  1. Rule of Law
    November 2, 2016

    I’m not sure this is right. Art. 29 of the Tax treaty contained a pre-authorisation by Parliament that domestic rights will be lost if the treaty is terminated – hence the words in Art 29 that “In such event [termination through diplomatic channels] the Convention shall cease to have effect in the UK [etc. etc].” There is no such equivalent parliamentary pre-authorisation in Article 50 TEU.

    • paulobrennan
      December 9, 2016

      Quite right, Rule of Law. I would though even contest Finnis’s blithe assertion that “no one doubts that notification under art. 29 [of the Double Taxation Treaty with Russia] can be given without any Parliamentary approval, let alone a statute”.

      Has the Government ever attempted to withdraw from a Double Taxation Treaty entered into under TIOPA without replacing it with another approved through the same mechanism? The question of the impact of TOIPA s2(1) on the Prerogative has, I am guessing, never come before the courts. For reasons that will become apparent below, there may be little point in taking up the matter once notice of withdrawal had been served. I am not sure that a unilateral withdrawal by the UK from a double taxation Treaty (even where the arrangements make provision for unilateral withdrawal) would not contravene the terms of s2(1), which states that arrangements made with a view to affording relief from double taxation (declared by Order in Council to be expedient) “have effect in accordance with section 6”. It could be argued that it is inconsistent with that for a Minister to have a unilateral right to revoke the arrangements, even under their own terms. One might at least expect the pre-requisite of an Order in Council declaring the arrangements to be no longer expedient, though there is no mechanism in TIOPA for such a step to be taken. There is at least room for doubt.

      On the other hand, arrangements in respect of which a declaration is made under s 2(1) only take effect to the extent provided for under s 6, that is to say insofar as they provide for relief from income or corporation tax etc. If the arrangements are terminated (whether by the UK of the foreign Government, and whether in accordance with the terms of the arrangements or otherwise) the relief under UK law for which they make provision is also thereby terminated.

      There are two ways of approaching this: either it is implicit in s. 6 that the Prerogative regarding withdrawal from Double Taxation Treaties (in accordance with their terms) has not been curtailed by TOIPA, or the Prerogative has been curtailed to that extent, but notwithstanding any improper exercise of the Prerogative by the Government the taxation relief would be lost. I think the first approach is more likely to be the correct one, but in neither case does TOIPA provide any help to the Government in the context of its arguments on Article 50. If the Prerogative to withdraw from Double Taxation Treaties is retained in spite of s 2(1), that is (as you infer) because Parliament made specific provision in s. 6 for the law to be adjusted automatically in the event of its exercise to that effect. With the possible exception of s.2(2) of ECA 1972 (which the Government is not seeking to rely upon), there is no corresponding provision in ECA 1972, or any subsequent legislation on the UK’s membership of the EU.

      S. 2(1) ECA says that the rights etc. “from time to time created or arising by or under the Treaties” and the remedies and procedures “from time to time provided for by or under the Treaties, as in accordance with the Treaties” are UK law. The ECA does not refer to “such of the Treaties as may be in force from time to time”. The Treaties could be hollowed out completely by agreement between the Member States (which, even were it not inconceivably unlikely, would have the merit at least that UK citizens would not be disadvantaged by being excluded from rights and benefits open to citizens of other Member States), but the EU Treaties listed in in s.1(2) ECA must prevail in some shape or form (subject to restrictions on their alteration imposed by subsequent legislation) with whatever rights and remedies for which they make provision being part of the UK legal order. No exercise of the Prerogative can alter Parliament’s decision on that point.

      It was a masterstroke by Eadie not to pursue TOIPA in any depth in the Supreme Court pretending that it is fiendishly difficult taxation legislation and all too complex for him to understand, merely suggesting in his reply that the Respondents had wilfully failed to address arguments based on TOIPA that had not in fact been properly put to them. I trust that the Court will see through his wiles!

    • Why do you call this a parliamentary pre-authorisation? Isn’t it rather a provision of the Treaty, made between the two Governments?

  2. C D Vanderweele
    November 2, 2016

    Prof Finnis writes, ” Parliament itself, by giving statutory approval to TEU art. 50, contemplated the possible destruction by sheer prerogative action of statutory rights including those in the 2002 Act.”. And Parliament has shown no signs of wishing to challenge the government’s assertion of it right to use the royal prerogative to invoke article 50. It appears to consider it has other means by which to control and hold the executive to account. On such a fundamental matter as the EU this attitude may surprise many, but the idea of appearing to want to take a decision that the public considers it has already taken is not attractive. Politics trumps law. Had Parliament wanted to take the decision or considered the detail of who invoked article 50 important it could no doubt have acted differently. Is there any need for the courts to inter-vene/fere where there appears to be adequate justification? Or are the courts to force Parliament to face up to its responsibilities?

    • C D Vanderweele
      November 2, 2016

      I should have remarked that although it is for the judiciary to control the use of the prerogative, in this instance Parliament has chosen not exercise a right(?) to make a decision in a matter that is foremost in political debate; not the situation in the cases of the last 30 years. To have had Parliament challenge the use of a royal prerogative would have been fascinating.

  3. Peter
    November 2, 2016

    The analogy of the tax treaties which are the most common form of treaty in the modern age has been missed and I am grateful for the learned article that brings this area of treaties into focus.
    S2 of the TIOPA 2010 and its predecessors are statutory provisions which for this purpose are on all fours with the ECA 1972.
    Prof Finnis states that because the tax treaties provide that they can be abrogated through diplomatic channels – all treates have this wording – they can be abrogated by the executive without any authority from parliament.
    This, Professor Finnis says, shows that the executive can at will and even if parliament and the people (he has to accept that if he is right then the view of the people is irrelevant) disagree, remove rights that persons within the jurisdiction have.
    Prof Finnis is both right and wrong to say that the tax treaties give rights to UK taxpayers in respect of foreign taxes.
    Semantically he is wrong to describe what tax treaties do as rights. They are reliefs from taxation. Tax treaties do not impose or increase any taxes. They merely say that certain tax provisions that levy tax under domestic law are effectively suspended or reduced.
    There is nothing new in the executive making such provisions. HMRC have for many years operated a series of “extra statutory concessions” that effectively say that although the tax statutes require certain taxes to be paid HMRC will not invoke such rights. Tax treaties are of that nature. The granting of extra statutory concessions is also authorised by parliament.
    So they provide relief or relaxation from tax in certain cases. They do not give rights. Paying less is not the same as receiving something. This may sound pedantic but a concession is discretionary. A right is not subject to any discretion or executive concession.
    These reliefs from taxation are on the other hand a benefit and rights are benefits so it can loosely be said that the tax treaties give rights to UK taxpayers.
    I am not familiar with the procedures for aboragating tax treaties. I would imagine however that the reverse procedure as for bringing them into force would apply. The treaty of abrogation would have to be placed before the House which can either approve or not.
    So I do not accept that the government could abrogate a treaty without parliamentary approval.
    The Orders in Council described in S2 TIOPA 2010 are delegated legislation and are therefore authorised by statute.
    I know of no tax treaty that has been abrogated without replacement although I do know of many that have been replaced. When replaced – the US / UK one is a good example with which I am familiar, both the aborgation and new treaty were approved by statute.
    Prof Finnis ignores one important difference between all treaties and the EU treaties.
    The EU treaties are unique. All treaties give rights and impose oblitations. The obligor in all treaties is the nation state. It is the defendant in any action whether such action is in international court – if there is one such as the court in Strassbourg for enforcing the UCHR – or in domestic courts where the treaty is incorporated into domestic law.
    The EU treaties alone impose obligations on individuals.
    They are in this respect unique.
    Does this make a difference. I think it does.
    Whether a treaty is incorporated into UK law or not is a matter of common sense.
    Treaties or war, or annexation of land involve nation states. After a battle where a nation is defeated the warring parties come to a quick settlement. This is done by generals on the field in the name of the government. It is inconceivable that parliament should debate such matters. Rights of citizens of the defeated nation are affected but there is nothing they can do about the matter. They have been defeated. Surrender or keep fighting and risk death are the only options.
    With trade and tax treaties if these are made subject to parliamentary ratification or statutory incorporation unto domestic law then they have no effect until this is done. It is the same with abrogation.
    It is said that when individual rights are taken away then only parliament can do this.
    The executive has wisely chosen to argue that parliament did approve the issuing of article 50 through the 2015 Act – implicitly. That is the substance of their case. In short they agree that the rights of individuals to travel freely within the EU and for EU citizens to travel and live freely here, can only be taken away by act of parliament.
    With tax treaties my argument is that they are different from the EU treaties because they are after all delegated legislation – not a surrender of sovereignty as the more excitable protagonists of Brexit have maintained for so long – and delegated legislation has to be repealed by legislation.

  4. johnadenitire
    November 2, 2016

    Prof Finnis conveniently leaves out of his analysis the provision in TIOPA which regulates the process by which the international double taxation agreements will cease to have domestic effect. The process is regulated by s 5 TIOPA which reads:

    “Orders under section 2: contents and procedure

    (1) If an Order under section 2 (“the later Order”) revokes an earlier Order under that section, the later Order may contain transitional provisions that appear to Her Majesty to be necessary or expedient.

    (2) An Order under section 2 is not to be submitted to Her Majesty in Council unless a draft of the Order has been laid before and approved by a resolution of the House of Commons.”

    Albeit not straightforward to interpret, this section envisages that an Order (i.e. the later Order) is required to revoke an earlier Order which gives domestic effect to the double taxation agreement (5(1)). The later Order needs to be approved by the House of Commons under sec 5(2).

    So it is debatable, as Prof Finnis asserts, that ‘No Parliamentary approval of any kind is required for the Crown to give notice of termination of the UK-Russia double tax Convention 1994’. While, no doubt the executive could invoke its prerogative to negotiate the termination of the double tax agreement under international law, it may not remove the domestic tax rights without complying with the s 5 process (i.e. (1) make an Order revoking the earlier Order which gives domestic effect to the international agreement; and (2) obtain the approval of the later Order from the House of commons).

    There is no useful analogy between TIOPA and the ECA because TIOPA sets out the process by which double taxation agreements can cease to have effect in domestic law. The ECA does not set out the process by which EU rights may cease to have domestic effect that is why we have to look to the common law principle of legality. My view on this issue has been expressed at

  5. Dr Mike Tremblay
    November 2, 2016

    Thank you for this further clarification. I’d observe that this strikes me as a careless approach to the design and enforcement, or not, of international obligations, if they can be so summarily removed at the whim of a democratic autocrat wrapped in royal prerogative. It is further evidence that we are no long a nation of laws but of regulations. As you say, politics is above law, but morality is above both. The is/ought dichotomy seems to be waiting in the wings for interpretation by the High Court or even the Supreme Court, despite the train wreck that passes for constitutionality in the UK (absent a written restraint on Parliament is what I mean).

    Perhaps a rereading of Hamilton’s Federalist #84 would be gentle reminder that some rights are not there to be willy-nilly trifled with, but become a permanent thread in the fabric of people’s lives. I’m partial to Federalist #78 myself to avoid abuse of power.

  6. Sean Feeney
    November 5, 2016

    Peter the defence case has certainly not been “that parliament did approve the issuing of article 50 through the 2015 Act – implicitly. That is the substance of their case. In short they agree that the rights of individuals to travel freely within the EU and for EU citizens to travel and live freely here, can only be taken away by act of parliament”.

    It was open to the defence to argue that as there defence skeleton conceded at [43] that:

    “”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.”

    However they did not argue this; they relied on the Royal Prerogative.

    I believe, on a Pepper v Hart reading, that the 2015 Act provided for the UK’s statutory decision to leave the EU and that this impliedly authorised notification since notification is an obligation under Article 50(2).

    This follows from it the construction that Parliament legislated in the 2015 Act for a decision to be taken to leave the EU with no power to fulfil the obligation to lawfully notify that decision being absurd.

    • Chris V
      November 5, 2016

      Hard to square with a referendum that was only advisory. No one is challenging the result. The mechanism for deciding how to notify under article 50 – royal prerogative or so resolution or act of Parliament – was unclear. It could have been either at the choice of the government. Government has not argued it could only use the royal prerogative, only that its decision to do so is not challengeable as a matter of law. The government’s argument is unattractive politically and hard to square with demand to take back our Parliamentary sovereignty as the decision of Steven Phillips to resign illustrates. But that’s politics not law.

    • Peter
      November 6, 2016

      Thank you for that. I have just referred back to the Government’s skeleton argument which was the basis for my statement and it certainly seems that their argument was that parliament did in fact through the 2015 Act approve the taking forward of the results of the referendum. I guess effectively their point is that parliament effectively delegated the power to take away the rights of persons within the jurisdiction to the people in a referendum. The referendum was the decision and that is the end of the matter. This argument comes through clearly from the statements following the judgment by people like Duncan Smith and others including the PM.
      The government’s case in their skeleton argument was that there was nothing in the 2015 Act that prevented the executive giving effect to the decision. In short implicitly the 2015 Act allowed by omission the decision to bypass parliament on the way to Brussels. Parliament had already spoken through the 2015 Act and made no requirement for the matter to be returned to parliament after the people had spoken so the government could give effect to the result.
      However it appears that during argument in court the government abandoned this argument, according to the court, rightly so. The court did refer to the background to the 2015 Act – presumably under the authority of Pepper v Hart – and found that the government considered the referendum to be advisory.
      So you are right both as regards Pepper and the final outcome.
      It is curious to me that the government is attacking the constitution. I can only assume that this is for political reasons. The government wants to be able to say that it did everything it could to follow the wishes of the people.
      The press attackes on the judiciary are to be deplored. There is something rather reminiscent of the 1930s Germany in these attacks, and that they seem to be implicitly supported by the government is concerning.
      The court did not stop Brexit as they are reported to have done. They merely opined on who had the right to issue the article 50 notice. In short a turf war. The government says it has the right parliament says it does.
      I do not see why this has become such a big deal.
      Parliament’s argument that they want to know the government strategy is silly. They seem to be incapable of understanding and so do the government and other Brexiters, that there are two separate deals – abrogation of the existing treaty and entry into a new treaty. The first they all say that they support. The second is optional and by no means guaranteed.
      There is only one way of treating the two as one and that is by making the article 50 notice conditional upon us getting what we want – access to the single market tariff free and no freedom of movement.
      A conditional notice would result in newspaper headlines screaming of threats to democracy.
      We live in interesting if not troubled times!!

  7. Sean Feeney
    November 5, 2016

    There is a more fundamental objection than that advanced by John Adenitire.

    The long-title of the 1972 Act (the courts use the long-title as evidence of the purposes of a statute) is:

    “An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar.”

    The long-title seems to me to be determinative evidence that the 1972 Act does not provide for reduction of the EU to exclude the UK.

  8. Sean Feeney
    November 5, 2016

    By contrast, I think the long-title of the 2015 Act does provide some evidence that its purposes provide for withdrawal from the EU:

    “An Act to make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union.”

    The hard-edged question of law is whether this is ”An Act to make provision … on whether the United Kingdom should remain a member of the European Union.”

    While I don’t think this long-title evidence is entirely determinative of whether the Act provided for a statutory decision of the UK to leave the EU, I do think the clear uncorrected statements of Government proposers of the Bill conclusively evidence that the intended purpose of the Bill was to provide for a “decision”.

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