Introduction

This final summary post aims to set out the highlights of the Supreme Court (SC) hearing on Day 4 of the hearings in the Miller v Secretary of State for Exiting the European Union case. As mentioned before, 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 was 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 was 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 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, SC Day 2 and SC Day 3.

Lord Advocate (‘LA’)

The Lord Advocate continued his submissions. He started by summarising again his final point of the previous day. He claimed that s 28 of the Scotland Act 1998 (‘1998 Act’) was justiciable because it was a statutory provision. This did not mean the court would decide what was ‘normal’. The real question was whether the court will decide that legislative consent is required. This would then pass the question to the political actors but there would be no legal sanction if there was legislation without consent. Given the convention that governs the legislature, it would be surprising if the Crown could act unilaterally.

Lord Mance queried whether the courts could intervene because they ‘depend on the existence of certain situations’ and then ‘hand over to the politicians’. Lady Hale asked about the meaning of ‘with regard to devolved matters’. LA said it led to the practice which he was arguing for of seeking consent. Lord Reed asked if there was a requirement for legislation then the situation fell within the convention. If it did not, then it was outside the convention. In those circumstances, the issue appeared to turn on the main question which was between the first and second respondents. LA said it was all part of the constitutional context.

On the issue of ‘it is recognised that’, Lord Sumption suggested that its juridical effect will turn on what has been recognised. LA accepted that recognition ‘begged rather than answered the question’. On two further issues, LA said the absence of a draft bill which would usually be there was not material because the changes proposed were so radical as to be a difference in kind. Secondly, he said in the light of the Claim of Right and other Acts, it would be extraordinary if the power to change the law had been given to the Crown not Parliament.

Richard Gordon QC (‘RG’)

RG appeared for the Welsh Government. He had three aims:

1. Expose a fault line in the Government case that had not been made clear so far
2. Make some general points of constitutional principle
3. Develop two core propositions of law

The fault line

James Eadie QC {JE’) for the Government had argued for a wide treaty making power. RG argued that this breached the ‘dispensing principle’ which he defined as the attempt to ‘dispense with an Act of Parliament’ – contrary to the Bill of Rights. It has never been modified. RG argued nine propositions:

1. This case concerns a claim to a prerogative, not statutory, power
2. There is a power to make and unmake treaties
3. There are certain prior constraints that apply to prerogative powers
4. The most fundamental constraint is the inability to dispense with laws
5. There are other constraints such as the lack of power to nullify rights or frustrate statutory schemes but the dispensing principle goes further including altering content of provisions
6. Where there is no prerogative power, no question of abrogation or reviving powers arises – this is elementary – a child of six could understand the point (Lord Neuberger – that is very well put)
7. The question then is whether triggering Article 50 will dispense with laws – we say it will
8. If triggering Article 50 will dispense with laws, that is the end of the matter
9. The whole reliance on De Keyser etc is misconceived because it skips stage seven, the first stage of the ‘analysis’.

Between laying out points 7 & 8 RG was asked by Lord Carnwath whether there was a difference between having a power and abusing a power. RG said it did not matter because one has to ask ‘if Parliament could possibly have legislated for the exercise of an illegitimate power’ (p 20). So the distinction is semantic only. Lord Carnwath asked why it was useful to dress it up as frustrating intention when it was a simple principle that you cannot dispense with laws.

Lord Neuberger asked whether RG was simply assuming that the statute does not permit this and would it not be better to consider the Act itself. RG challenged the concept of the clamp put forward by JE. He said that there was no relevant use of the word clamp that could apply. Either the prerogative exists when the legislation is enacted or it does not. Lord Mance asked what was new about the case RG was making. RG said the wording of the devolution legislation means the European Communities Act 1972 (‘ECA’) needed to be read alongside the devolution statutes. RG repeated that he could not see how De Keyser line of case law was relevant to the case. Nothing is being abrogated because there is nothing to clamp. If De Keyser is irrelevant, there is no alternative put forward by JE.

Constitutional principle

RG set out two questions: 1) there is a fundamental principle against which the prerogative must be tested 2) independently of that, how should the common law approach the scope of the treaty-making prerogative. RG said the prerogative is residual and its scope limited by common law. In 2008 Gordon Brown wanted to make all prerogatives statutory. The Sewel convention is an important constitutional force that ‘is the glue and the only glue that can really hold an unwritten constitution together’ (p32).

The institutions of state play complimentary roles. RG said if this was approached from the dispensing principle or the common law, it must be Parliament that decides. The Referendum Act has nothing to do with legal issues in the case. ‘It is a statute that has died, it has fulfilled its purpose. You cannot revive a corpse by tearing up the birth certificate’. Lord Mance pressed RG on the significance of the devolution legislation. RG focused on ss 108 and 109 of the Government of Wales Act. He said that Parliament intended that any changes to the regime had to be statutory in basis. Lord Neuberger suggested that the Sewel convention reinforces the main point rather than being a freestanding point.

Two core propositions

1. There will be a dispensation of the laws in the Government of Wales Act – going beyond rights
2. The Sewel convention

There is a detailed framework governing legislative competence so it is inherently unlikely that a major change like withdrawal could be done with no controls. RG dealt with the exclusion of foreign affairs from powers of Welsh Assembly. RG said the outcome was important and the outcome here affected areas of competence. He repeated that the Government’s argument that the devolution legislation cannot abrogate the prerogative because it does not enter the field is to confuse the abeyance principle and the dispensing principle. He said that the stated requirement that Parliament must occupy the field ‘must be wrong’ (p 49). Under some questioning from Lord Mance, he went on to repeat his argument that the De Keyser principle was inapplicable.

On the Sewel convention, RG said that the importance was not the legal enforceability but the issue of dialogue. This related firstly to dialogue between legislatures. As this dialogue related to competence, it requires Westminster to consider whether to legislate without consent. The evaluative decision rests with Westminster but the decision is not under the prerogative. The argument therefore turns on the common law approach to the prerogative. The Sewel convention is not ‘legally irrelevant’ as argued by the other side but in fact it reflects a practice.

Helen Mountfield QC (‘HM’)

HM started by telling the court about her clients and the crowd funding that paid for the claim. She said the court was not being asked to compel Parliament to do anything. She disagreed with the starting point of asking if there is a prerogative to change the law and then whether it had been abrogated. She said this was an artificial starting point. She said there was a logically prior question to abrogation which is whether there is a power to change the law on the national plane. If there was not, then abrogation never arises.  She said there were three areas to discuss:

1. The extent of the prerogative
2. Whether triggering Article 50 would in fact change domestic law
3. Reply to two submissions from the other side

On the extent of the prerogative, HM said this is not a misuse case. It is an issue about the extent of the prerogative. There is no power to dispense or change the law beyond the prerogative. She quoted Lord Bingham saying the courts determine the existence and the extent of prerogative. It is a matter of historical enquiry. HM said she accepted that prerogative can affect some rights as in GCHQ. This idea must be distinguished from a power so wide it changes the law or dispenses with the operation or alters the source of it.

HM distinguished between changing facts and changing the law. She cited the Case of Proclamations. HM then cited a case concerning merchants within London under Henry IV. She also referred to the Claim of Right and the Acts of Union, as well as Bancoult and Nicklinson and some authorities from New Zealand and Australia. She argued the latter showed that whether Parliament may change law later is irrelevant.

The second argument was to address any distinction that the other side could draw between the prerogative generally and treaty powers. HM argued that the treaty making power could not be used to vary domestic law or remove rights citing the ‘Phillimore’ principle among other cases including Tin Council. She also cited McWhirter and Hales. She said these cases established that there is an orthodox position. HM said that there was therefore no authority for the argument that prerogative could change domestic law and that therefore Entick established that if it is not in the books, it is not law. HM said that JE’s submissions were the equivalent of arguing that because none of the attempts to catch the Loch Ness Monster succeeded, the monster still roams free.

Dispensing the law

HM’s next issue was whether triggering Article 50 would dispense with the law. She disagreed with any suggestion that EU law is in some way not domestic law. HM said she accepted the ECA is ambulatory but not in the way JE argued. She argued that the positioning of the phrase ‘from time to time’ is crucial because it appears next to the rights not to the Treaties. She argued that the rights could change, but not the Treaties. HM said if JE was right the executive could sweep away a whole swathe of rights at the stroke of a pen and she said some rights were listed in the annex.

HM then argued that the executive could effectively dispense with Human Rights Act if JE was right. Lord Carnwath asked whether before the HRA, the right to petition the court could have been taken away. HM said that right had no domestic application before the HRA. Lord Carnwath said ‘it is the Act that makes the difference, yes’. Lord Reed wondered about Criminal Injuries Compensation and GCHQ. HM said they were different because they were not statutory rights.

Two responses to JE arguments

HM denied that the Referendum Act 2015 (‘2015 Act’) could revive or legitimise the use of the prerogative after it went into abeyance under the ECA. In order for a later statute to have the effect on the ECA as a constitutional statute, it would need clear and express words which the 2015 Act did not have. To hold that such language existed by implication would be judicial legislation.

HM’s final point was that it was unsurprising that the 2008 Act and the 2011 Act were silent on the constitutional arrangements for triggering Article 50 because it is so fundamental that the Government cannot dispense with the law.

Manjit Gill QC (‘MG’)

MG said hard cases make bad law but this was not a hard case. He said if the rule of law means anything then the sovereign must be bound by it.

He had three points:

The first was that the use of the prerogative is not abstract but would have very real effects on family members and carers of EU nationals, who have what are called Zambrano rights. This would breach the non-dispensing principle. On the day of exit, many of MG’s clients would have to leave the country. MG said that JE’s assurances were not enough and the Government could throw out people the day after notification if there was an immediate treaty agreement. MG also said that some of his clients could be exposed to criminal liability as a result of the trigger. This has never been disputed by JE. MG took the court through the relevant legislation saying the on the day of exit, clients without right to remain would be committing a criminal offence. He said it would breach the Case of Proclamations for the executive to have the power to impose criminal offences in this way. MG argued that this would be a good point even if Lord Pannick’s (‘LP’) arguments were all rejected.

The second point made by MG was that this would also affect children. Lord Neuberger suggested it was a bit like FBU.

The third point was the flexible construction point. MG said this was a red herring. He said it was a fundamental principle and there was no need to struggle to make the constitution flexible. MG said trying to make the 2015 Act flexible was a ‘novel and far-reaching proposition’. He also said it was outlandish and involved reading in words that were not there.

The court then adjourned for lunch.

Patrick Green QC (PG’)

PG said he appeared for the ex-pat interveners in the case. He said he was concerned with the loss of rights that Parliament could not replace beyond these shores. He said he wanted to focus on the anterior question of whether there was ever any relevant prerogative by reference to the ECA.  In summary he said he wished to argue:

1. Parliament consented to the EU institutions via the ECA
2. Parliament authorised the Government to participate in the legal process
3. This caused a fundamental constitutional change
4. Only Parliament could confer that change and therefore take it back

The above propositions he said were dispositive. PG said that the subsequent Acts (2008 and 2011) merely regulated that conferred legislative competence. The increasing control exercised by Parliament over powers exercised in the EU are inconsistent with JE’s case. This confirms that only Parliament can take back powers. The other Acts are ‘swimming in a different direction’ to that contended for by the appellant. PG said that the ECA was not neutral on membership at all, following Lord Mance’s question earlier in the hearing. PG said that if Parliament did grant a power, the referendum would be very significant for the exercise of that power but no more.

Lord Clarke asked about the role of the 2008 Act. PG said the 2008 Act simply codified the requirement to amend the ECA for any new treaties. Finally, PG argued that s 18 2011 Act suggests that the basis of rights is the ECA itself and the Act does not say ‘so long as the treaties remain in force on the international plane’.

Advocate-General for Scotland (‘AGS’)

The AGS addressed two issues: 1) He said the Government was firmly committed to the Belfast Agreement. 2) The devolution Acts assume but do not require membership of the EU.

The AGS said that the devolution arguments did not affect the outcome because if they were wrong on the ECA, then they were wrong on devolution and vice versa. Lord Reed raised the Sewel convention. Contrary to RG, Parliament had specifically authorised the use of the prerogative to make EU law and he cited s 2(2) ECA and s 57 Scotland Act in support. He distinguished dialogue from legal powers. He denied the existence of the legislative consent convention which he said was an attempt to subsume into convention a number of areas of mere practice.

He said a number of attempts to expand the meaning of the Sewel convention in the legislation had been rejected during the passage of the bill through Parliament that recognised the Sewel convention. He rejected the idea that the Sewel convention encompassed the Lord Advocate’s legislative consent convention. The purpose of putting it into statute was solely to ensure that any future changes to it had to be done by primary legislation. He said it was simply a self-denying ordinance. There is no remedy and it is not justiciable. If there is a right, there is a remedy. If there is no remedy, is there a right? Lord Carnwath suggested that ‘on no view’ could withdrawal from the EU constitute a devolved matter. Lord Sumption said that was the main difficulty with the notion that special treatment was necessary because of the knock-on effects. The AGS said the statutory version of the Sewel convention was simply declaratory.

James Eadie QC (‘JE’)

JE started by claiming that their case was not that they could amend the Dangerous Dogs Act or any equivalent Act. No power was asserted to alter the law of the land or alter common law rights. He did assert a specific power under Article 50(2) even though that will result in changes to domestic law. Parliament can intervene in particular contexts. It is significant to look at what powers Parliament has left in place. He said the question was the nature of the parliamentary intervention that has taken place. Did Parliament decide that representative power cannot be used to give notice or has it decided that it can be used to give notice.

Lord Sumption then suggested that maybe Parliament decided neither of those things but ‘left it to the ordinary law governing the exercise of the royal prerogative’. JE said the right starting point was to make it a question about what Parliament has decided to do. If it has ‘set up an intricate regime’, it might be thought ‘tolerably surprising’ if the answer was what Lord Sumption ‘posed’.

Lord Kerr asked whether underpinning JE’s point is the idea that Parliament must have decided one way or the other. JE said Parliament does not have to decide but the question for the court is ‘whether it has in fact done so’ having looked at the regime (p151). Lord Kerr asked what if it had not done so. JE said ‘if it has not decided, then you are thrown back onto the nature of the prerogative power, of course’.

Lord Sumption then asked ‘do you accept that if Parliament has not decided one way or the other what the answer to that question is, then… you lose’. JE ‘if Parliament has not intervened in any way…’. Lord Sumption said ‘Do you accept that if Parliament has not decided implicitly or expressly whether an Article 50 notice can be given by ministerial authority, one way or the other, do you accept that means you lose?’. JE said ‘if you ignore all the EU legislation, CRAG and the regime, we do not assert a power to amend the Dangerous Dogs Act’. Lord Sumption ‘by Dangerous Dogs Act, I take it you mean the ECA’. JE said the ECA ‘drags back in the very legislation your question sought to exclude’.

Lord Neuberger asked if the court decides that Parliament has not decided either way ‘then what? Or do you say we have to interpret the Act one way or another?’ JE ‘I do’. Lord Mance said: ‘We are looking for hypothetical intention effectively’. JE ‘You are’.

JE suggested that ‘no one had really quibbled that parliamentary intervention can create the situation where serious domestic impacts, to put it neutrally, flow from Government acts on the international plane’. He cited Post Office and the Lord Haw-Haw case. He denied Lord Sumption’s suggestion that this was an international fact – ‘a difference not a distinction’. Lord Wilson said that what was being proposed was prerogative bringing people in and out of laws and this could be said to be quite different.

Lord Reed said the argument being put to JE was very ‘simple’. The common law rule that the Crown cannot alter the law of the land. EU law is law of the land. Therefore the prerogative cannot be used to alter the effect of EU law. Lord Reed said JE’s argument is that EU law is not the law of the land in the same way as the Dangerous Dogs Act. ‘You cannot alter the Dangerous Dogs Act but you can alter EU law because it is not part of the law of the land in that sense’ (p158). Lord Reed said if there was a Dangerous Dogs Regulation that could be deprived of effect. JE agreed.

Lord Mance then said going behind the types of EU law, that the ECA meant that Parliament was prepared to entrust legislation to another body and it would be odd to think that ‘could be undone by an executive decision’. JE said you had to look at the scheme as a whole. Lord Mance suggested that JE’s answer was entirely predicated on the ‘conduit’ argument. JE said it all depended on the context and you cannot just apply a big broad principle – you have to look at parliamentary intervention. Lord Reed asked if JE was saying that the basic source of law was the ECA confirmed by the EU Act 2011. JE said yes. It would have a potential effect on the power to conduct foreign affairs if the uncertain principle put forward by Miller is accepted. It could have very very serious consequences.

Lord Kerr asked if JE accepted that Parliament has given citizens’ rights. JE said no. This is a particular and special type of right. It is contingent. It depends on a two legged stool. It is a conduit. Lord Kerr asked again if they were not rights given to citizens by Parliament and said this was the ‘question that had to be confronted’. JE said Parliament merely created a conduit. Lord Reed said he thought JE said they are rights given by Parliament but that they are conditional on continued membership of the EU. JE said they are contingent on two things 1) continued participation in EU processes and 2) contingent on continued membership of the EU.  Lord Kerr said that was building ‘quite an edifice on the phrase “from time to time”’. JE said it was not built on that but on the nature and structure of the Act.

Lord Sumption asked if it would help him even if he was right on this point because what comes through the pipe might be a question of EU law but ‘whether the conduit pipe exists is a question of English constitutional law, and you have to show that a ministerial decision can, to use Lord Mance’s words, effectively alter the sources of EU law, in other words alter… English law, British law. It has to alter the constitutional question: what are the sources of our law and not just the question: what rights happen to exist’ (p168). JE said he had to show the nature of parliamentary intervention. He said that the reason LP put a general principle forward is because when you look at the statutory scheme, ‘the argument becomes extremely difficult for them’. JE said he denied the approach of stepping back and ignoring De Keyser and the statutory regime and just applying a general constitutional principle.

Lord Neuberger said JE’s argument boiled down to a conduit pipe that the Government could control what goes down the pipe. JE agreed and called it the empty vessel argument. JE said that the other side wanted to ‘stop the clock’ in 1972. It would be artificial to address the question of triggering Article 50 without any reference to the legislation that established the referendum.

Lord Wilson raised the European Parliamentary Elections Act 2002 (‘2002 Act’). He said this was important because it is a conventional domestic statute ‘which you are proposing to appeal or empty of content’. JE said of course it was freestanding and will stay on the books even after exit. JE said the fundamental premise of the 2002 Act is that we are members of the club so it is different in form but the answer is the same. JE said Mr Coppel QC had reminded him that the answer was also in Paragraph 63 of their case.

JE said on the 2015 Act, LP insists on language for interpretation but for the ECA he looks at purpose and effect. The ECA is an implementing statute. The ECA creates rights of ‘a very special kind, contingent, inherently limited, created and taken away on the international plane’ (p176). JE also cited EFTA as an example of prerogative being used to take away rights without statutory authorisation. He then went back over the 2008 and 2011 Acts. He asserted that later legislation was the first time legislative control had been exerted in a variety of different and ‘nuanced ways’.

JE then said that the fact that no control was put on Article 50 meant that it was left to the prerogative. He said that after Lisbon was approved by Parliament, it was even more clear that rights under EU law were ‘inevitably subject’ to Article 50 being triggered. The royal prerogative powers remain under the 2008 Act. ‘It is not a statutory power, Article 50, as such but it involves Parliament in legislation recognising its existence’ (p 186). There was no other way to explain the 2008 Act. Parliament made provision for the sorts of things that required primary legislative authority.

JE then turned to the 2008 Act. He mentioned that Lord Carnwath had raised the treatment of Article 50. LP had given three answers: 1) Article 50 just expresses the prerogative power in a new way. JE agreed with this. 2) LP’s second answer was that Article 50 was ‘not directly effective and so effect is not given to Article 50 by s 2(1) ECA’. JE said that the point is that the 2008 Act ‘approved in the same way the non-directly effective provisions of Article 50’. 3) LP said Article 50 just referred back to domestic constitutional requirements.

Lord Clarke then suggested that he was making a ‘jury point’ because ‘common sense’ suggests that Parliament must have thought of the issue. JE rejected that. Finally he turned to the 2015 Act, he distinguished the AV Act because there is no prerogative power to change voting procedures. He repeated that the court was being asked to tell Parliament to answer the very same question put in the referendum. JE said the 2015 Act speaks volumes about the intention of Parliament.

JE then said that this is not a destruction of prerogative case. It is not an abeyance or abrogation situation. It is a situation where the exercise of the prerogative power is controlled. No one could argue that the use of the power would be an abuse or improper after the referendum. Lord Mance said he did not follow that because ‘if the prerogative could not be exercised except with authority in the form of an Act of Parliament then it is not the prerogative being exercised, it’s the parliamentary authority’ (p197). JE said Parliament had left the prerogative in place. The 2015 Act made clear that exercise of the prerogative would be entirely proper.

JE then addressed the Motion passed in the House of Commons the previous day. He said it provided a ‘sharp focus’. He said if there was worry about ‘joint effort’ or a mirror, this answered it. Lord Neuberger pointed out that this was the House of Commons not the Queen in Parliament and required JE to admit that if they were against him on the ECA and the 2015 Act, the Motion did not help him.

Lord Pannick rose to thank the court staff. Lord Neuberger thanked everyone involved in the case. The court then adjourned.

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 4′, U.K. Const. L. Blog (14th Dec 2016) (available at https://ukconstitutionallaw.org/))