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This post aims to summarise the highlights of the Supreme Court hearing on 6 December 2016. As mentioned yesterday, as with 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. The live stream is also available for playback after 24 hours. 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.
James Eadie QC (‘JE’)
JE continued his submissions.
He gave the court three notes that had been prepared overnight. They were on:
1) Constitutional Reform and Governance Act
2) European Free Trade Association (EFTA)
3) Great Repeal Bill
He started by challenging the Divisional Court finding that Parliament intended to legislate ‘so as to introduce EU law into domestic law in such a way that this could not be undone by the exercise of prerogative power’. He said 1) Parliament did not do so expressly and 2) any restriction could only be by implication. He repeated the argument that the rights were solely on the international plane. He also argued that under FBU, there is no ‘broader principle’ than De Keyser.
Lord Sumption then asked if JE agreed that they could not take into account the Great Repeal Bill. JE said it was ‘not directly relevant to the question of interpretation’. He also argued that Parliament ‘would have to be involved’ at some point but Parliament ‘can look after itself’. Lord Neuberger said ‘that is not the issue we are deciding’. Lord Sumption then suggested that JE ‘had given two diametrically opposed answers in the last five minutes to the same question’.
JE then returned to FBU, and said the difference was that a specific statutory duty existed there but not here. He also reiterated that EU rights are contingent and that there will be a ’joint effort’ and there was ‘real symmetry’ between Parliament and the prerogative (p18).
JE then went on to claim that it was extremely significant that the 2015 Act was silent on the prerogative and left it in place. He then argued that even if the European Communities Act 1972 (‘ECA’) meant exit was impossible straight afterwards, the prerogative was still being used. That would mean that the ECA would put a ‘clamp’ on the prerogative. JE argued that by a similar process of implication, the 2015 Act could remove the clamp.
Lord Neuberger suggested that an alternative meaning might be that if Parliament was silent then it was a matter for Parliament. JE also argued that the difference with the AV referendum was that it had to be legally binding whereas for the ECA nothing more needed to be done.
Lord Mance asked if there was any legislation that was not possible to be construed by the court. JE said he preferred the idea that the court should operate a ‘self-denying ordinance’ (p29). JE said it was not a ‘non-justiciable’ argument. Lord Mance said if the 2015 Act removed an ECA restriction that was a point the courts could decide upon.
JE argued that there would be serious implications for the exercise by Government of prerogative if the High Court was upheld. It would introduce a much more stringent scheme of control. Lord Mance suggested that radio licensing and double taxation were quite different but the ECA was special because it proceeds on the basis of a new legal order. JE said the double taxation example showed the model being used.
JE said this was the background constitutional principle. JE suggested it reversed De Keyser. It turned legislative silence against him. JE said he had to address the question whether prerogative could ever be used to take away rights. He said:
1) The prerogative was a general power with specific elements
2) Specific limitations can be imposed
3) Treaty exercise is not limited to where there is no effect in domestic law
The question is whether Parliament has limited the general power. That is from De Keyser. He said the other cases, Laker, Burmah Oil, FBU were the same principle. He argued that in Burmah Oil there was no doubt about the right to take away, the question was compensation. In De Keyser, there was a power to affect domestic law but there was a question of compensation as well. JE also cited Post Office v Radio.
Lord Sumption said that none of those cases were cases where domestic law was altered – Burmah and De Keyser were existing powers to take property in certain circumstances. Post Office was just a question of fact not law. None of them raise a point similar to this case.JE said they could be seen as different but he said they showed that sometimes a right can be contingent.
Lord Wilson said that some of the judges had read Lord Millett’s argument but did not think the Joyce case on Lord Haw-Haw was actually a prerogative but was instead a joint effort case. There was then further discussion of the clamp and whilst the referendum might have political effects the question was whether it had legal effects (Lord Clarke, p47). Lord Reed then asked if that meant that they were compelling the Government to bring forward a Bill. JE said yes and this was part of his concern about remedy.
Lord Hughes asked what would happen to all the laws and rights that come through the ECA when the notice expires. JE said they lapse. JE said the same thing happens to rights conferred directly like voting. The legislation would remain on the books ‘but we would no longer be members of the club’. Lord Hughes asked if they lapse because they derive their force from the ECA or the international order. JE said the twin effects of both together. Lord Hughes said ‘the joint effort. Thank you’ (p50).
JE then considered the different impacts on common law and tort law for example as the legislation changed. He said the common law may continue to recognise any principles it wishes. Lady Hale commented that while the EU elections would be ‘deprived of effect’, a great deal of legislation such as health and safety would survive. The issue is that what would be lost would be the right to ask the court to refer to Luxembourg. JE said he accepted that but swathes of law would remain.JE said the Government would go through the law area by area.
Lord Hodge then suggested that there was a big difference between where Parliament authorised action through orders in council such as the double taxation issue and this case where the law would be altered by withdrawing from the treaties altogether. JE said it was part of the structure of the Act and that it was just a matter of scale of loss of rights given it was accepted rights could be taken away. Lord Hodge said taking away rights was only through the EU institutions (p56). JE said that was still exercising prerogative powers.
The next proposition was that the breadth of principle put by the High Court was too wide. After that, JE said this was not an aberrant situation but actually orthodox. JE then used a Canadian case, Turp to try to argue that there it was found that a prerogative could be used despite an Act. JE then dealt with EFTA as a parallel. JE then left double taxation to be considered from the written case.
JE then said that the other side’s case involved:
1) Ignoring the legislative regime and CRAG
2) Stopping the clock in 1972
3) Ignoring the dualist structure
4) Ignoring the controls
5) Ignoring the 2015 Act
6) Ignoring De Keyser
JE then went on to argue that parliamentary sovereignty would be respected because Parliament would be heavily involved. His five closing submissions were (pp72-4):
1) The prerogative to make or unmake treaties is a key part of the constitution
2) Parliament has deliberately regulated some powers but not this prerogative power
3) There is no basis for some sort of hidden legislative presumption
4) The apparent simplicity of the other side submission hides a serious constitutional trap where the court would cross an important line which they have been careful not to cross before
5) The 2015 Act shows that any action by the government would be consistent with the will of Parliament
Advocate General for Scotland (‘AGS’)
The AGS started by saying his focus would be devolution issues. He adopted the written submissions of McGleenan and McLaughlin on the Northern Ireland issues. The AGS addressed three themes:
1) Sovereignty and the prerogative
2) Constitutional status of devolution legislation
3) The Sewel Convention
The AGS denied that sovereignty was a purely English principle. He quoted McCormick v Lord Advocate. Nor is there any difference with the prerogative per Burmah Oil.
The AGS said that these are constitutional statutes. He said this made no difference to the interpretation. He said that the issue of foreign relations was a reserved matter and this was fatal to the other side’s case (p87). Nothing abrogated the prerogative. Lord Clarke asked if the law was the same in Scotland as here. The AGS said yes. The AGS also said that the EU rights are ambulatory in the devolution legislation as well. He emphasised that the law was the same in all the devolved areas.
The AGS dealt with three arguments from Agnew:
1) Rights would be removed – the AGS denied that because rights are only there by a conduit
2) The distribution of powers would be altered – the AGS denied that would happen
3) Notification would frustrate the purpose of the Act especially cross border bodies – the AGS said the bodies were not fixed and determined for all time coming (p92)
The AGS went on to deny that the Northern Ireland Act was directed to maintain membership of the EU.
The AGS said that the Sewel convention was a statement of political intent and not legally binding. It creates no legal obligations. The UK Parliament retains authority to legislate on any matter. Whatever restriction is a self-denying ordinance and only political. He said the Lord Advocate was arguing that the convention somehow was to “transmogrify” into a legal requirement. Lord Sumption asked how the convention could be only political once it was in an Act (the 2016 Act). The AGS said it was the statutory expression of the political convention.
Lord Neuberger suggested the Sewel convention was not raised because it was only relevant once it gets to Parliament which is the prior question the court was dealing with. The AGS denied it was a constitutional requirement that the convention be followed and it had nothing to do with Legislative Consent Motions.
Finally the AGS said that the Belfast agreement was ‘inherently flexible’ not fixed for all time (p111). Lord Reed suggested that the ‘clamp’ might not be an ‘on/off’ switch but might relate to the Laker situation and be about the exercise of the power being properly or abusively done. So if Parliament passes the act and a week later the government wants to withdraw then that could be an abuse of power. If there was a referendum then there could be a rational basis for the power.
The court then rose for lunch
The Attorney General for Northern Ireland (‘AGNI’)
The McCord question
The issue is if Article 50 impedes s1 of the Northern Ireland Act 1998 (‘NIA’). The AGNI denied that the trigger would have that effect. He also denied that the NIA abrogated the prerogative. He made a number of arguments:
1) The NIA was in effect a constitution – Lord Reed pointed out that normal principles apply anyway
2) The British-Irish agreement as an international agreement does not have domestic effect and is in any event only a political text which should be used cautiously as an aid to construction. They do not dislodge the prerogative.
3) He denied Article 50 would affect the NIA
4) The AGNI recommended that the court take a ‘flexible’ approach
5) There had to be some necessary implication before the prerogative could be taken away
6) He questioned whether the timing of the 2002 Act actually would ;lead to any rights being lost saying on withdrawal the 2002 Act ‘would no longer be a particularly useful part of the statute book’ (p140). Lord Mance asked if the precise position would be restored. The AGNI said no. Lord Mance then said he must then accept there was some effect from the notice which is given.
Lord Pannick QC (‘LP’)
LP started by saying that his case was that the prerogative could not be used to ‘nullify’ statutory rights and duties. Also that Parliament did not intend that rights and duties could be nullified by ministers acting in the international plane. He said that if JE was right, far from having a constitutional status, the ECA would have a lesser status if the rights under it were contingent and operated only by a conduit. LP said this case was stronger than other cases because this concerned a constitutional statute. LP said he wanted to make seven points:
1) The European Referendum Act 2015 (‘2015 Act’) gave no relevant power to the Government
2) The prerogative cannot be exercised to nullify statutory rights
3) The application of principles of statutory interpretation – the burden is on appellant to show Parliament has conferred a power to nullify rights
4) The purpose and intent of Parliament in the ECA was not to the effect that what it created could be nullified
5) De Keyser did not set out an exclusive principle. Instead as per FBU, ministers could not frustrate a statutory scheme using prerogative powers
6) Use of post ECA legislation cannot help JE and Parliament would need the clearest of statements to create a new prerogative power
7) It is no answer to say Parliament could get involved. Only an Act could authorise notification
The 2015 Act
The 2015 Act says nothing about the consequences of the referendum. When Parliament wishes to make something binding, it says so. The Government specifically resisted an amendment to make it binding and the minister said it was advisory only. It is politically but not legally significant. The 2015 Act would need to be much clearer to remove any inhibition from the ECA. Lord Reed asked if it could be a question of abuse of power. LP said it was that there was no prerogative power to interfere, to frustrate or to nullify a statutory scheme. This meant the issue of abuse of power therefore did not even arise.
The limits of prerogative power to make treaties
LP claimed JE failed to recognise the limit on prerogative power that it cannot be used to frustrate or nullify domestic law due to parliamentary sovereignty. Prerogative cannot be used to affect the content of domestic law. He used Parlement Belge as an example of where the Crown had crossed the line. He then referred to Laker. LJ Lawton said in that case that the Secretary of State could not use Crown’s powers in a way that takes away rights of citizens. None of the cases concerned the use of the prerogative to alter the content of domestic law. LP said that there was no relevant prerogative power in this case.
Principles of statutory construction
LP said the appellant must show, and the burden is on him, that a clear power has been conferred by Parliament to defeat statutory rights. He had three points:
1) When delegated powers such as Henry VIII clauses are created they are construed narrowly – the court should be even more reluctant when considering prerogative powers where there is no express authorisation – the prerogative cannot be in a better position than a delegated power
2) The principle of legality – since the courts presume that Parliament does not intend to defeat fundamental statutory rights, the court should conclude Parliament did not intend for the prerogative to defeat rights unless clearly provided for
3) The exclusion of implied repeal – since Parliament cannot be held to ‘casually’ impliedly repeal an act, the divisional court held that ‘still less’ could it be thought likely that Parliament intended its legal effects could be removed by the Crown using the prerogative. LP said he could not put it better himself.
Lord Neuberger asked if this affected the 2015 Act. LP said that the clearest statement would be needed from that Act as well.
The purpose and content of the ECA itself
There is no clear statement in the ECA that rights could be removed.
1) The ECA created a new legal order.
a. It creates a body of rights at international level that take effect in domestic law
b. Those rights take priority over national law
c. The scope and meaning of the rights is determined by the court in Luxembourg
2) S 18 of the EU Act 2011 emphasised that EU law has effect because of UK Acts. This meant that Parliament regarded itself as in charge.
Lord Mance suggested that it gives weight to the argument that Parliament is the progenitor of rights rather than the conduit. Lord Neuberger said it treated Parliament as the source rather than the communicator.
LP said that the values of the ECA were a commitment to include the UK in the EU. On the long title, LP said it was not consistent with it to reduce the EU by the UK leaving. He then dealt with Professor Finnis’ ‘for and in connection with’ argument. Lord Carnwath asked if it was useful to look at the meaning of the ECA still. LP insisted that it was still the relevant Act as it was still in force (p 193). Any alteration of the Treaties requires a fresh statute.
Under s 2(1) ECA the phrase ‘from time to time’ simply recognised that rights could evolve. It did not mean that membership could evolve from time to time. LP agreed with Lord Reed that the difficulty for JE was that he could make s 2(1) redundant. LP agreed.
LP said JE had said that Article 50 ‘is not part of domestic law’ in response to Lord Mance. Lord Carnwath asked why s 2 ECA could not provide a ‘base’ in domestic law. LP said it was because Article 50 had no direct effect. Lord Carnwath said LP could not have it both ways. If LP needed a base then why could not s 2(1) ECA provide it. LP said it was a question of EU law. Lord Carnwath suggested LP did not understand his point. He suggested that LP’s premise was there needed to be a domestic law statutory base for the power and ‘if you look at s 2(1) ECA, arguably this is a power created by EU law which is effective’. LP said it was not part of the case against him that there was a statutory power already. Lord Carnwath said he understood but wanted to know for himself. LP repeated that Article 50 had no direct effect and merely recognised that the issue was a matter for national constitutional requirements. LP said Article 50 could provide no basis in domestic law for notification.
The court then adjourned until 10.30am the next day.
Robert Craig, LSE Law School. Thanks to Stephen Tierney 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 2′, U.K. Const. L. Blog (7th Dec 2016) (available at https://ukconstitutionallaw.org/))