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Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Supreme Court, Day 1

Robert CraigIntroduction

This post aims to summarise the highlights of the Supreme Court hearing on 5 December 2016. Unlike the reports on the High Court, this report will not be comprehensive. This is because those with the most interest in the case will have watched online or read the transcript. There is also the Supreme Court live blog. It is hoped that this report will simply highlight some of the key moments for those with a more passing interest in the case. Astonishingly, the live stream is also available to playback already. I have sought to highlight the interventions by the judges as possibly of more interest as many of the arguments made by Counsel mirror arguments below which can be found in the summaries of the High Court hearings on Day 1, Day 2 and Day 3.

Initial statement

Lord Neuberger, President of the Court made an initial statement in which he made six points:

  1. No identification of various parties
  2. No party has requested any judge to stand down after the question was put to them
  3. Thanks to all those who worked hard to get this to court so fast
  4. We are grateful to advocates who have limited their submissions due to time constraints
  5. Open Justice is important and is behind the live streaming
  6. This is a legal not political decision

The Attorney-General (‘AG’) (pp1-16)

The AG went first as the Government was appealing the decision of the Divisional Court. He started with two preliminary points:

  1. This case is of huge constitutional significance
  2. The case was brought entirely properly and it is proper for the court to decide it

After setting out some political background which he said the Divisional Court had mistakenly ignored, the AG made three core arguments:

  1. The foreign affairs prerogative is not an ancient relic but a contemporary necessity
  2. The prerogative operates as part of a dualist system
  3. The prerogative operates wholly in accordance with parliamentary sovereignty

The AG also claimed that “Parliament can stand up for itself” and that it has had many opportunities to intervene if it wished (p15).

James Eadie QC

Mr Eadie (‘JE’) set out four stages to his submissions;

  1. The nature of the prerogative
  2. Dualism
  3. The De Keyser principle
  4. Application of the principles to the facts

The nature of the prerogative

JE made three initial points:

  1. The prerogative is an essential part of the constitution (quoting Professor Endicott (p 19)) and a necessary part of the modern constitutional framework – ‘essential to effective government’ (p23)
  2. Prerogative powers are those exercised without parliamentary authority
  3. ‘Prerogative is part of sovereignty that which Parliament has chosen to leave in the government’s hands’ (quoting Lord Reid in Burmah Oil (p 25))

Lord Carnwath then raised justiciability. JE admitted they were not running that point as they had in the High Court.

Dualism

JE made five points on dualism:

  1. Prerogative powers may be used to create international legal effects on the international plane
  2. There is a distinction between creation and transposition of rights
  3. Legislation creates a conduit between international and domestic law
  4. Even under the dualist principle, acts on the international plane can affect domestic law eg Post Office v Radio case (extension of jurisdiction by prerogative) – Lord Mance suggested this was just another example of the “pro tem” argument – ‘from time to time’
  5. The rights are contingent – he referred also to an article by Lord Millett

The De Keyser principle

  1. Parliament can limit prerogative powers expressly
  2. Whether it has done so expressly or not is a matter of construction
  3. Real clarity is required before prerogative can be removed
  4. It is important to look at what Parliament has not done as much as what it has done
  5. The test where there is no express limit is ‘necessary implication’
  6. You need to consider the statutory position at the time of the proposed exercise of the power – the respondents position reverses the true position. Lord Kerr asked if prerogative can be revived on repeal of statute. JE said yes.

De Keyser itself

If the statute directly regulates the prerogative, it becomes a statutory power as long as it regulates ‘the very thing’. Lady Hale queried whether the prerogative actually existed in that case.

Laker Airways

This was an attempt by the Government effectively to use the prerogative to give in effect a direction to the civil aviation authority to frustrate or terminate the airline’s landing rights. Lord Mance asked if it was rather that the Government was ‘using a power which it had to withdraw designation under a Bermuda agreement with the United States, thereby, by the back door undermining what it wasn’t –what it had done by the front door’ (p62). JE described this as ‘De Keyser by analogy rather than directly’ (p67).

Fire Brigades Union (‘FBU’)

Lord Mance pointed out that two judges expressly said that De Keyser didn’t apply in Laker and that the case had been decided on a different principle. Lord Wilson asked if these cases were anything more than interesting examples of the necessary implication test. JE said no. Lord Sumption asked if treaties were a special case. JE said no (p70). Lord Sumption also asked if there was a preliminary question about the exercise of the prerogative on the international plane which never touches the prerogative by definition – then there would be no question of abrogation. JE said it was a general power. Lord Sumption asked if he meant that the facts could be altered or domestic law, pointing out that these were two very different questions. JE said both or either (p75).

The court then broke for lunch.

Application of the principles to the case

JE started by arguing that prerogative can be used to take away rights. The answer to the existence of the prerogative is to see whether the statute impinges on the territory occupied by the prerogative. He then argued that the best place to start was the Constitutional Reform and Governance Act 2010 (‘CRAG’). He took the court through the detail of the statutory scheme for approving the ratification of treaties. Lord Neuberger asked if in effect Parliament had the power to jump in and say ‘don’t do it’. JE concurred.

JE’s main contention was that the detailed scheme of arrangement in CRAG demonstrated that Parliament had considered whether to intervene on the use of the prerogative, His point was that the fact that so much intervention in that area had occurred meant by implication that the remaining prerogatives had deliberately not been interfered with and were therefore implicitly approved for use by the Government at their discretion. ‘If Parliament is going to be intervening into that field, it does so expressly, deliberately  and in this sort of nuanced way’ (p 89).

JE then went on to argue that the European Communities Act 1972 (‘ECA’) did not expressly limit the prerogative in any way, by contrast with CRAG. He suggested that the long title did not support the meaning given by the Divisional Court. He then went through Professor Finnis’s argument that there is a distinction between ‘for and in connection with’, and ‘in connection with’.

JE then suggested that if the Government had changed its mind after the ECA, it could have not ratified the treaty as Norway did.  Lord Mance said this might be like the FBU case because if the Government had said it would never ratify that would have been an abuse of power in the same way. JE said it would have remained the choice of the Government. JE also argued that the difference also was the ECA did not impose a duty unlike FBU. Lord Sumption asked whether JE was saying that a prerogative power was created by the 2008, 2010 and 2011 Acts. JE said no. In that case, said Lord Sumption, if the Government did not have the power before those statutes then the later statutes do not help. JE repeated that the key is that the starting point is that there is a generally expressed prerogative and the question is whether it is impinged upon (p102).

Lord Wilson said ‘one of the arguments that you will have to deal with is, if our accession was the result of joint effort, should our departure not equally be so’ (p103). JE said it was not a joint effort going in, it was just transposition. No joint effort was needed to come out (p105). JE also said that if joint effort were needed, the fact that Parliament had held the referendum constituted the joint effort. Lord Neuberger also asked whether the Government could have had a change of heart after signing a treaty. JE referred to Lord Bingham in the Robinson case as establishing the fluidity of the constitution. He said that he did not rely on it because he said the point was clear but the partnership could operate in different ways.

JE said that under s1 ECA, the ECA could not have been intended to abrogate the Article 50 notice power because Article 50 was not even ‘a gleam in someone’s eye at that point’ (p112). He then said s2 ECA created a conduit. ‘The rights and obligations …could be removed by action taken under the prerogative by the Crown’ (p115).

Lord Mance then asked if Article 50 was incorporated in domestic law. JE said it was not because it only operates in the international plane and is not directly effective. JE was then asked if there was a difference between amending rights and withdrawing altogether. He said there was no fundamental difference. It was only a question of scale (p120).

Lord Sumption then asked whether the 2008 Act could alter the meaning and intention of the ECA. ‘Although Article 50 only operates on the plane of international law, from 2008 onwards’ that could affect the object of s 2 ECA. Lord Clarke then suggested that it was not just a question of scale but actually making the conduit entirely redundant. JE denied that it was actually different in nature. JE also said that the rights were limited in nature.

JE then went through his remaining s2 ECA points. He said that after the conduit point, s2 ECA recognises rights created on the international plane and also altered there. This meant there were two necessary conditions, the conduit and the prerogative being used to shape, create remove or alter those rights and obligations. The next point was that the rights are contingent. He also said he adopted Lord Millett’s recent article.

Lord Mance asked if the real issue was that controls were exercised over increases not diminution of competences. JE said that this first happened in the 1978 Act which he said was crucial because it was the first time the prerogative was controlled – and it was done expressly. This is difficult to explain if the prerogative has been excluded. JE asked why there was an elaborate scheme if the prerogative had been excluded. JE also said that the approval of the Lisbon Treaty meant that the idea that rights could be seen as ‘set in stone or permanent’ could not be ‘maintained’ after that. JE maintained that the failure to regulate the prerogative meant that parliament intended it to left ‘well alone’ (p 144).

JE then went on to deal with the detail of the later Acts and the controls imposed to make his point that by implication, the failure to control Article 50 demonstrated Parliament intended that to continue untouched – the ‘punchline’ (p150).

JE then dealt with Thoburn and denied that the constitutional status of the ECA mattered.

On the 2015 Act, JE said that what mattered was what it did not say. He argued that the fact it was not legally binding did not mean it was legally irrelevant. Lord Mance asked if there was no right to use the prerogative until the 2015 Act, did that Act reintroduce the right to use the prerogative (p158). JE referred to Robinson in arguing that you ‘should not draw too straight a line’ (p159). Parliament sanctioned, loosely not legally, what they want to do under the prerogative.

Lord Clarke asked for confirmation that the referendum was only advisory. JE confirmed the reference. JE argued that the paper which said that was written by a member of House of Commons staff and was no aid to interpretation. JE also repeated that the 2015 Act was similar to the other legislation in not interfering with the prerogative. JE said the silence was compelling. Secondly JE argued that the 2015 Act was specific contemplation by Parliament of the loss of rights occasioned by withdrawal. JE said it was not correct to treat the 2015 Act as legally irrelevant (p170).

On whether the later legislation is relevant, asked by Lord Mance, JE said you could not freeze the issue in 1972. The scheme must be taken as a whole.

JE finished with four primary submissions:

  1. The shape of the schemes controlling the prerogative were the exercise of sovereignty so what is not done is as important as what is done
  2. The omission to control Article 50 is significant
  3. There is no express provision that Article 50 needs legislation
  4. We are not in a De Keyser situation

Robert Craig, LSE Law School. Thanks to Jeff King for helpful comments. Usual disclaimers apply.

(Suggested citation: R. Craig, ‘Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Supreme Court, Day 1′, U.K. Const. L. Blog (6th Dec 2016) (available at https://ukconstitutionallaw.org/))

6 comments on “Robert Craig: Report of Proceedings: Miller v Secretary of State for Exiting the European Union, Supreme Court, Day 1

  1. Jim South
    December 6, 2016

    Thanks Robert for the summary. I’d like to add a comment about one of the issues mentioned in your summary. You state: “Lord Sumption also asked if there was a preliminary question about the exercise of the prerogative on the international plane which never touches the prerogative by definition – then there would be no question of abrogation.” However, Lord Sumption didn’t use the words “which never touches the prerogative by definition”. The point he was making is evident from the following passage from the transcript:

    “Does one not have to ask first what is the nature of the prerogative power? Is it a prerogative power which authorises one to do things on the international plane which do not have the effect of altering domestic law, or is it a general prerogative power? The reason why that matters is that, if the prerogative power never did extend to doing something that altered the domestic law, then no question of abrogation arises. You arrive at a situation where its exercise would alter domestic law, and you cannot do it, not be virtue of any implied statute or express statutory provision, but simply because of the conditionality of the prerogative right one is talking about.”

  2. thefouracre
    December 6, 2016

    Section 1(2) ECA 1972 – 16:14 – 16:18 – Day 2 – Lord Pannick:

    The Crown cannot alter the Treaties and change their domestic effect without it being added to Section 1(2).

    This is not true and does not follow. Prior to the Lisbon Treaty (because of the 2008 Act which controls amendments to the Lisbon Treaty), if the Crown hypothetically had entered into a treaty and ratified it, to alter the right of freedom of movement to require that a person have £30,000 in their bank account to exercise that right, the previous right would have been altered and would be unenforceable as a matter of international law. The fact that the new right would be unenforceable without being added to Section 1(2) ECA 1972 is evidence that the rights only ever subsist in international law, and do not subsist and are not transposed by the ECA 1972.

    This goes to the very heart of what is the effect of the ECA 1972 – which is of course about cognisance, enforceability and justiciability of EU law as a source of (international) law in the United Kingdom – this is evident as a converse of the non-justiciability of an unincorporated treaty as noted in Buttes Gas v Hammer.

    Lord Pannick conceded the point that the Treaties constitute a new legal order in the United Kingdom. They operate because Section 2(1) and 2(4) read together say it is so.

    He forgot to mention when referring to Van Gend En Loos that the obligations/right are “not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law”.

    He can’t have it both ways.

    Once again Lord Pannick keeps stating that which Parliament has created cannot be taken away by the prerogative. But Parliament has not created international law. There is no parliamentary approval of ratification of Treaties, not even under Part 2 of CRAG.

    Mr Eadie’s continual argument of transposition and creation of statutory rights as a separate abstraction of treaty rights is going to lead the court into a line of thinking and argument that is entirely untenable in the context of the effect of the enacting of the ECA 1972.

    This all turns on what do we mean by incorporation which has bedeviled the courts for years.

    I can’t believe I have to keep banging on about the comments of Lord Atkin in Attorney-General for Canada v Attorney-General for Ontario [1937] UKPC 6:

    “but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default…The question is not how is the obligation formed, that is the function of the executive: but how is the obligation to be performed and that depends upon the authority of the competent legislature…”

    There is a fundamental distinction between creating/conferring a right, and operating and implementing a right.

    It is the function of a dualist system that Parliament operates and implements by statute international law in the United Kingdom, but it doesn’t create it. To that extent, it is a constitutional firewall.

    Repealing the ECA 1972 does not destroy rights under the Treaties absent the exercise of the prerogative power to terminate the UK’s membership of the EU treaties. Repealing the ECA 1972 makes those rights, powers, liabilities, obligations and restrictions subsisting under the Treaties (in international law) no longer enforceable, cognisable and justiciable.

    Lord Hoffman in R v Lyons [2002] UKHL 44:

    “27. In other words, the Convention is an international treaty and the ECtHR is an international court with jurisdiction under international law to interpret and apply it. But the question of whether the appellants’ convictions were unsafe is a matter of English law. And it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them: JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418. Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. ”

    Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law.

    • Dave Sussex
      December 6, 2016

      Lord Carnwath’s probing of Lord Pannick’s Art50 non-incorporation into domestic law is a real opportunity for JE in his closing submission as an ‘in the alternative’ case.JE should consult Robert Craig urgently.

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

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

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