Introduction

This post aims to summarise the highlights of the Supreme Court (SC) hearing on Day 3 (7 December 2016) of the hearings in the Miller v Secretary of State for Exiting the European Union case. As mentioned in previous posts, and as with the reports on the High Court (HC), 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. Many of the arguments made by Counsel mirror arguments below which can be found in the summaries of the High Court hearings on HC Day 1, HC Day 2 and HC Day 3. The previous reports from the Supreme Court hearing can be found at SC Day 1 and SC Day 2.

Lord Pannick (‘LP’)

LP continued his submissions in the morning. He started by completing or perhaps repeating his fourth submission that the European Communities Act 1972 (‘ECA’) contains no clear statement that the executive has the prerogative power to nullify the statutory scheme. Further he argued that in accordance with the statutory presumptions on Henry VIII clauses and implied repeal, the ECA clearly indicates that the executive do not have that power.

He then argued that as s 2(4) ECA made the ECA immune from implied repeal then Parliament could not have intended that its scheme could be set aside by the minister. He said the High Court was right to say that s 3(1) ECA would make no sense if all treaty rights could be removed by the executive using prerogative.

He then dealt with three matters raised the day before and handed up three notes:

1. Lord Reed’s question about the use of Hansard – a number of judges were quite sceptical about the use of Hansard. LP suggested that they do not decide the issue given how many other constitutional issues were already at stake.
2. The academic debate in the 1970s mentioned by LP surrounded the case of Blackburn
3. LP explained the distinction between ‘Treaties’ and ‘treaties’

LP said that many statutes would be frustrated if the appellant terminates membership of the EU. He said one example was the European Parliamentary Elections Act 2002 (‘2002 Act’). He said it was no answer to say that the rights lapse because that begged the question.  He gave a further example of s 4 Communications Act 2003 which required OFCOM to carry out its duties in accordance with Community requirements which would make no sense if we left.

Lord Hodge asked if he was addressing the type of legislation. LP said no. Lord Hodge then asked if the same problem arose for an Act of Parliament purporting to give statutory authorisation to the Crown for giving notice under Article 50. LP said he could not see how any legal impediment could stand in the way if such an Act gave clear authority. LP also said the 2003 Act was not an ambulatory statute. Lord Sumption said that these statutes raised a completely different problem to the ECA. LP repeated that notification would frustrate and render insensible a large number of statutory provisions.

Fifth submission

The fifth issue was the De Keyser principle. There was some discussion of (and amusement over) pronunciation (Hale: De Keeser; LP: De Kaiser; Mance: ‘down here we think its De Kayser’ – LP: ‘you say De Keeser, I say de Kaiser…’ before the President closed it down by pointing out that no one could tell from the the transcript!). LP distinguished between De Keyser situations and FBU situations. In the former, there simply is no power to nullify statutory rights. The latter was where action might frustrate a provision made by Parliament. LP said that Lord Mance had pointed out that the majority in FBU recognised it was not a De Keyser situation. De Keyser could not therefore be an exclusive code as to the limits of prerogative powers.

LP moved on to Rees-Mogg. LP said there was no effect on domestic rights in this case and Parliament had already approved what was to be done. LP received some gentle teasing about the ‘ambitious argument’ put by counsel in the Rees-Mogg case (which also happened to be Lord Pannick, many moons ago) , since the ambitious argument in that case was wholly inconsistent with the argument he was making in the Miller case. LP said this was a completely different case, and at any rate, that their Lordships should focus not on what Lord Pannick had argued but what the Court of Appeal had found in the Rees Mogg case.

Sixth submission

The post ECA legislation – LP asked the court to look at a Green Paper where it was said that Parliament had to assent where domestic law was changed. LP argued that the Constitutional Reform and Governance Act 2010 (‘CRAG’) was therefore nothing to the point on what prerogative power could be exercised. He said that there was no power to act on the international plane to nullify a statutory scheme. If there were to be such a prerogative power, it would need to be in the clearest terms. Lady Hale pointed out that if such a power were created, it would not be a prerogative power but a statutory power.

LP said that James Eadie (‘JE’) had not suggested that there was a statutory power in any of the legislation. Lord Mance asked if it could be the revival of a prerogative power. LP repeated that his submission that there has never been a prerogative power to nullify what Parliament has created. Lord Reed repeated the earlier point about a clamp on the ECA, whilst warning of the danger of metaphors. LP said the EU Referendum Act 2015 (‘2015 Act’) has no legal effect on the ECA and the clearest intentions would be needed to take away rights (p29).

Lord Neuberger asked if the fact that there were no express words creating the clamp then there did not need to be express words to take it away again. LP said there was no such language in the 2015 Act. The referendum only has political not legal consequences. Lord Neuberger said this was a ‘problem’ and that the lack of legal effects on a flexible constitution might be thought a little surprising. LP said the 2015 Act was advisory and did nothing more. He said that otherwise a fundamental constitutional principle would be removed.

LP also said that Lord Neuberger’s point meant that the principle that the executive cannot frustrate or nullify a statutory scheme could be removed without the clearest of statements. LP repeated that Parliament could have made it binding if it wished but it had not. LP also said that the argument being put to him was that the 2015 Act could be said to have no binding effect on the Government and does not ‘commit’ the Government – but it nevertheless had the effect of removing ‘what is otherwise the absence of a prerogative power’ for the Government (p 34).

Lord Kerr intervened to warn again about metaphors and said that rather than a clamp, the question might rather be whether the 2015 Act is sufficient to displace the fundamental constitutional principle. LP concurred. Lord Wilson said the effect of the 2015 Act might rather have been for Parliament to assess the significance of the result rather than leaving it to the executive. LP agreed and submitted that the burden is on those who argue the 2015 Act had altered the position, not on him. This ‘burden of proof’ argument was a crucial aspect of his submissions on behalf of Miller.

Lord Reed said that the 2015 Act might be different from other Acts and have only political effects and wondered what this had to do with the courts. LP said the courts’ role was simply to identify whether there was a relevant power and the law was untouched by the 2015 Act. Lord Reed said the effect of the remedy sought was to compel a Government minister to introduce a Bill. LP said he would address the particular point later and repeated that there was nothing in the wording of the 2015 Act that could be used to divine any relevant intention in the 2015 Act that Parliament intended to leave the matter to the executive as the appellants contended (p41). LP said there was no language in the statute that could ground such a claim. He said that the appellants made no claim that any power to trigger could be located in the 2015 Act.

Lord Mance suggested that some Acts might not have legal significance such as the Scotland Act 2016 as to the Sewel convention. Lady Hale said that the Act did have an effect which was to provide for a referendum and set the franchise.

Lord Carnwath asked about the European Union (Amendment) Act 2008 (‘2008’ Act) that incorporated the Lisbon Treaty and what effect that had. LP said no effect for three reasons: 1) The Government case was that there already was a power to withdraw so the 2008 Act did not create a new power. 2) Article 50 says nothing about how domestically the state should act 3) the Government accepted that Article 50 had no effect as part of s 2(1) of the ECA.

Seventh submission

The law of the land is not affected by a mere Motion in Parliament – it would have to be an Act. He quoted Laker and National Federation of Self Employed and Small Businesses to make the point. The idea that ‘Parliament can stand up for itself’ could have been made in Laker or FBU. LP also said that CRAG was not good enough because even if Parliament voted down any new treaty agreement, the UK would still leave. LP also said they could not operate on the assumption that the Great Repeal Bill would be passed.

Dominic Chambers QC (‘DC’)

DC put forward a three stage argument:

1. The doctrine of parliamentary sovereignty
2. The appellant’s concession that triggering Article 50 would mean that rights would inevitably and undoubtedly be lost – including rights under the European Parliamentary Elections Act (‘2002 Act’)
3. The absence of any parliamentary authorisation for the executive to override or nullify primary legislation

Stage 1

DC said the doctrine of parliamentary sovereignty was forged on the ‘battlefields of 17^th Century England’ (p54). The Bill of Rights 1689 stated that ‘the pretended power of suspending laws or the execution of the laws by regal authority without consent of Parliament is illegal’. He also quoted Dicey’s definition from the official 8^th edition, the last he edited himself. Lord Mance asked if the rights were conditional or ambulatory. DC said ‘a right is a right’. He drew attention to the 2002 Act and said only Parliament could take it away.

DC then quoted Stockdale v Hansard that the sole right of electors is to elect members of Parliament. He quoted Dicey saying ‘the courts will take no notice of the will of the electors… the judges know nothing about any of the will of the people, except insofar as that will is expressed by an Act’ (p62). DC said nothing in this case would impose micromanagement on the executive because the principle involved does not affect treaties which do not affect domestic law nor where such action in the international plane has been authorised by Parliament.

Stage 2

DC said the source of rights that he was referring to was not EU law but the ECA and the 2002 Act. Lord Carnwath asked if an analogy could be drawn with Youseff for the conduit principle. DC said he would return to it. DC then took the court to the resolutions to join the EEC in principle but said that since the ECA, everything had to be looked at through that prism. Lord Neuberger asked whether it would have been possible for the Government to change its mind after the ECA was passed but before ratification. DC said that would breach the principle in FBU.

DC drew attention to a speech by Lord Templeman that distinguished treaties which changed the law of the land and ones which do not require approval by Parliament. DC submitted that there is a prior lock on where domestic implementation is required. If the ECA was necessary for the treaties to be effective, then a new Act was necessary to remove the effects. Parliament has control of the process of treaty approval and must have similar control over withdrawal.

DC emphasised that EU law rights enshrined in the ECA are domestic statutory rights and denied the conduit argument. He cited Thoburn and the EU Act 2011, s 18 in support as ‘belt and braces’ way to deal with suggestions in Parliament that sovereignty was under threat. Lord Sumption suggested that the doctrine of primacy and Costa had caused the principle to be doubted. DC added Factortame to that list. DC quoted a Select Committee report that he said showed that it was for Parliament to decide whether or not to leave the EU.

DC also emphasised that the 2002 Act did not mention any other system or instrument. It was in every sense legislation enacted by Parliament. The ‘from time to time’ argument is ineffective against the 2002 Act. ‘The 2002 Act is such that the rights are set out in stone’ (p89). In summary, therefore, DC said his second point was the concession by the appellant that rights granted by Parliament would inevitably be lost or removed by notification.

Stage 3

Prerogative power is simply a label for executive action and that cannot be used contrary to parliamentary sovereignty. The only remaining question is whether there is parliamentary authorisation. DC said it was the wrong end of the telescope to find a prerogative power and see if Parliament had limited it. It is for the executive to show Parliament has authorised the loss of rights.

The court then adjourned for lunch.

After lunch, DC had moved seats. Lord Neuberger said he was coming from a new angle. DC observed that it was ‘in accordance with the registrar’s excellent ambulatory seating plan’. Much mirth ensued.

DC began by arguing that Youssef was simply a further example of the application of any EU law. DC said neither the 2016 nor 1975 referendum was legally binding. He quoted some comments from ministers and select committees in Parliament to that effect as well as previous referendum examples and how legislation in those was drafted. DC said the 2016 referendum had no legal effect.

Lord Carnwath raised a point that had been ‘troubling’ him which was the problem of potentially telling Parliament how to exercise its sovereignty. He asked whether if a motion was not good enough, how a one-line bill solves the problem. DC said that the court was the guardian of parliamentary sovereignty. DC said no one would be saying anything to Parliament. Lord Carnwath said ‘no, it is saying to the executive, you cannot do it’. DC agreed (p105).

Lord Kerr said that the court would not be issuing any edict to Parliament. It would be a matter for Parliament. Lord Neuberger said that might sound fine to a lawyer but not to the person on the street. Lord Sumption suggested that it was a vital distinction otherwise both Houses could pass a resolution rendering the ECA ineffective. He said it was ‘completely fundamental’ and was about ‘the rule of law’. Lord Mance said that neither Professor Dicey nor Professor Hart ‘would have been very surprised to find our rule of recognition defined’ in the way DC defined it.

Lord Reed said that life had moved on since Dicey and the referendum could be understood as an instruction to political institutions. Dicey did not deal with that situation. DC said the task was to determine if the instruction was legally binding or not. DC said that the ministerial statements are not admissible because Pepper v Hart says such statements are only admissible in the case of ambiguity which is not the case here. Lord Neuberger said that DC’s point was that Parliament could have provided for the effect but it did not and it was not for the court to try and guess what Parliament intended. DC agreed.

David Scoffield (‘DS’)

DS said he appeared with Professors Christopher McCrudden and Gordon Anthony in the case of Agnew before the court. DS said he was dealing with issues raised by Northern Ireland.

DS put the question whether the Northern Ireland Act 1998 (‘1998 Act’) mean that a fresh Act of Parliament is required before triggering Article 50. DS said the answer was that the 1998 Act was ‘not neutral’ on the question of UK membership of the EU for three reasons:

1. Removal of rights cannot be by prerogative alone
2. Significant alteration of the devolution settlement cannot be achieved by prerogative alone
3. Giving Article 50 notice would frustrate the purpose and intent of the 1998 Act

Under the first strand, DS said the 1998 Act conferred EU rights on citizens and embedded the new EU legal order into the constitution of Northern Ireland. The Government accepts that those provisions would become ‘otiose’ or ‘beat the air’. The essential purpose of the dualist system is to protect the position of Parliament against the executive not to protect the position of the executive against Parliament.

On the second strand, DS said the Northern Ireland authorities were limited by EU law. Hollowing out of EU law obligations will remove some areas of devolved responsibility because observing EU law is a transferred matter. This is particularly true of a constitutional statute, or a constitution, like the 1998 Act. The sensitivity of the situation is what requires cross-community consent. DS said the Government’s contentions are ‘cavalier’ both a small ‘c’ and a large ‘C’ (here referring to the supporters of King Charles I in the English Civil War – to laughter). When a clear constitutional balance is upset, clear authority is required. DS said that this applied to the constitution of Northern Ireland.

DS also argued that an argument particular to Northern Ireland concerned the Belfast Agreement which requires ‘north/south cooperation’ (p120) – but he accepted the British-Irish agreement was unenforceable in domestic law. Lord Mance asked how DS ‘gets this into the Northern Ireland Act’. DS said in three ways 1) the long title 2) the flexibility in Robinson 3) a number of express references in the 1998 Act. He said that withdrawal ignored the executive nature of the relevant cross-border bodies. DS also said that while the broad brush approach of the Advocate General was that foreign affairs were reserved, some elements of international relations had in fact been transferred. His final two points were 1) there is nothing heretical about the contention that a constitutional convention may be a constitutional requirement 2) the temptation to rush to the endpoint on legislative consent and consider what would happen if there were legislation without consent but the better argument would be to consider whether the convention would be engaged.

Ronan Lavery QC (‘RL’)

RL said it would be unconstitutional to withdraw from the EU without the consent of the people of Northern Ireland for two reasons 1) Being part of the EU is part of the constitutional settlement. 2) RL said there had been a transfer of sovereignty by virtue of the Good Friday Agreement and section 1 of the Northern Ireland Act 1998. The notion of the supremacy of Parliament has now gone. The rule of law is now supreme. He cited the Canadian Quebec Secession Reference in support of his proposition as well as dicta of Lord Mance in Axa and some dicta in Jackson. RL focused on the important fact that the UK is now effectively a federal system in his submission. The 1998 Act put the membership of Northern Ireland in the UK on a voluntary basis. It is confederalism rather than federalism. The principle of consent is enshrined in s 1 of the 1998 Act. The 1998 Act forms the constitution of Northern Ireland. RL said the consent requirement meant that something like the Anglo-Irish agreement of 1985 could never be imposed again and further, that s 1 of the 1998 Act was irreversible, citing Lord Denning in Blackburn.

Lord Advocate (‘LA’)

LA’s first point was to do with the effects of withdrawal on the constitutional arrangements of the UK. Only the Queen in Parliament has the power to do that. LA cited the Claim of Right Act 1689. The Act of Union in 1707 gave power to Parliament not the Crown to change the law. LA said there was no ‘specialty of Scots law as regards the prerogative’ (p147). LA argued that executive’s claim in this case would elide the constitutional mechanism of consent to legislation. This does not amount to a veto, but it was of constitutional significance.

LA said that directly affected European law would lapse, to use Mr Eadie QC’s word. Legislation passed by the Scottish Parliament will become potentially ineffective. He listed a number of sections of the Scotland Act 1998 (‘SA98’). LA said that section 2 of the Scotland Act 2016 provides that ‘But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.’ And in the circumstances this means a legislative consent motion is required to proceed.. Lord Mance asked where the binding element came from. LA said 1) it constituted a constitutional requirement within the definition of Article 50. 2) Conventions constrain the legal power of actors within the constitution. Lord Mance asked if this was not a EU law question and therefore not for the Supreme Court to decide. LA said the Government did not dispute that in principle a constitutional convention could be a constitutional requirement. LA also repeated that the incorporation of the Sewel convention into statute transformed the status from convention into a rule of law.

LA said that the legislatures of the UK were entitled to have a voice in the decision. Further, a legislative consent motion was required when there was a change in competences. Where a change would impact on competences then the fact that it is a reserved matter is no longer the key issue. Just because something is reserved that does not mean legislative consent cannot be required. On the issue of section 2 of the Scotland Act 2016, Lord Sumption asked if the word ‘normal’ was justiciable. LA said it was difficult to imagine how. Lord Kerr said it was possible to consider circumstances where Parliament flagrantly breached it by continually legislating for Scotland. Lord Mance asked the relevance when this case concerned executive powers and then suggested that if you cannot legislate then you cannot do other things. Lord Kerr said it would be at the very least incongruous if Parliament commits itself to seeking a legislative consent motion when proposing to legislate on a matter within devolved competence, but allowing the Government to in effect change the law of Scotland without such a commitment. LA concurred.

The court then adjourned until the next day.

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 3′, U.K. Const. L. Blog (12th Dec 2016) (available at https://ukconstitutionallaw.org/))