Constitutional Law Group January 19, 2017 Europe, European Union, UK government, UK Parliament

Simon Renton: Historical Perspectives and the Miller Case

Unlike many legal subjects, constitutional law involves an awareness of history. Conversely, a student of British Constitutional History benefits from an understanding of legal concepts. (Though, as a history undergraduate who in 1969 was taught the subject by Jenifer Hart, the wife of HLA Hart, any mention of the “rule of recognition” would have been lost on me.) As we await the decision of the Supreme Court, it is germane to consider the story of the UK’s accession to the EEC and other Communities in 1971-1973. The debates in the House of Commons in 1971-72 provide one with a good understanding of the legal and constitutional issue which were at play; as well, of course of the international, political and economic issues which engaged the attention of Ministers and backbenchers.

In this blog, I have focussed on a number of areas where, in the Miller case, the assertions of the Government’s legal team in the Supreme Court as to what occurred in 1971-72 need to be treated with caution. The Government’s approach to these historical events elicited a number of probing questions from the bench in the Supreme Court including Lord Mance’s comment: “On your analysis, Parliament is effectively prepared, isn’t it, to do whatever the Government decides without actually expressing a view itself. Is that realistic?”

Could the Crown have signed the Accession Treaty without the approval of Parliament?

This question needs to be considered against the historical background. In 1961 and 1967 the Government of the day sought the approval of the House of Commons to proceed with negotiations with the Six. In October 1971, Heath’s Government sought the approval of the House of Commons for the UK joining the Communities on the proposed terms. These terms had been summarised in a White Paper which had been the subject of a lengthy debate in late July 1971.

During the debates in the Commons in 1971, the Prime Minister and a number of Ministers closely involved with the negotiations made it clear that the decision to join the EEC (and the other Communities) was a decision that it was for Parliament to make. To give one example, in his statement in the House of Commons on 17 June 1971 Edward Heath said: “the Government have always acknowledged the need for the whole question to be fully considered and discussed by Parliament and by the public before Parliament is asked to take the decision of principle on it”. [HC Deb 17 June 1971 vol 819 c645]

The decision to join the EEC was of such significance that it was one that only Parliament, the representative institution of the British people, should make. At the close of the October 1971 debate on the Motion to approve the principle of the UK joining, the Prime Minister made it quite clear that if the Motion was not passed, the UK Government would not proceed with the application to join. [HC Deb 28 October 1971 vol 823 c2211]

However, to the Government’s relief, the Motion was passed by 112 votes (356 to 244). It was on the basis of that Motion (and the Motion which was passed by the House of Lords) that the UK proceeded to sign the Accession Treaty on 22 January 1972. This was made expressly clear by the Government in a debate in the Commons on 20 January 1972, when the Opposition unsuccessfully sought to delay the signing of the Treaty. Geoffrey Rippon, who led the Government’s negotiating team, said: “It is for this reason [the unique character of the Treaty of Accession] that the procedure adopted by the Government for informing and consulting Parliament and obtaining the approval of Parliament for the principle at stake has indeed been unique.” [HC Deb 20 January 1972 vol 829 c704 ]

Could the Crown have ratified the Accession Treaty without Parliament passing the ECA 1972?

The debates in the Commons in 1972 make it clear that ratification of the Accession Treaty was dependent upon Parliament passing the EC Bill proposed by the Government. On 1 March 1972 Geoffrey Rippon, Chancellor of the Duchy of Lancaster, said: “There are various ways in which Parliament can express views before ratification, and it is pointed out that Parliament can oppose or reject but it cannot take bits and pieces of a treaty….. Parliament can always either oppose or reject—in other words, refuse approval”. [HC Deb 01 March 1972 vol 832 cc536-537]

The risk that the Government would be defeated and “lose the EC Bill” was a risk that was pointed out to the Commons on 29 February 1972. A backbencher, Elystan Morgan, referred to the judgment of Lord Atkin in the case of the Attorney-General of Canada v. the Attorney-General of Ontario, decided in 1937 and reported in Appeal Cases 1937, at page 326. Lord Aitkin said at page 347: “If the national executive, the Government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible, they will often in such cases, before final ratification, seek to obtain from Parliament an expression of its approval. But it has never been suggested and it is not the law that such an expression of approval operates as law or that in law it precludes the assenting Parliament or any subsequent Parliament from refusing to give its sanction to any legislative proposals that may subsequently be brought before it.” [HC Deb 29 February 1972 vol 832 c278]

Whether Parliament would give or refuse approval came to a head on the Second Reading of the EC Bill in February 1972. Enoch Powell put the matter clearly in his speech: “This Second Reading debate is the first occasion upon which the House of Commons has ever had before it as a specific proposal the proposition of British membership of the European Economic Community. It is the first time that we have ever debated this matter in the form and in the way in which this House historically takes its decisions; for it is part of its habit and its shrewd wisdom that it does not take its decisions on matters of theory, on hypothetical possibilities, upon approving or disapproving White Papers. It takes its real decisions—and examination of its history at the moments when it has asserted its power and vindicated the liberties of the people will prove this—on the occasions when specific legislative propositions are put before it. Now is the first time that we are asked in that form to consider British membership of the Community and its consequences”. [HC Deb 17 February 1972 vol 831 c699]

It was in acknowledgment of this point that the Prime Minister, Edward Heath, concluded the debate on the Second Reading in this way: “I must tell the House that my colleagues and I are of one mind that the Government cannot abdicate their responsibilities in this matter. Therefore, if this House will not agree to the Second Reading of the Bill tonight and so refuses to give legislative effect to its own decision of principle, taken by a vast majority less than four months ago, my colleagues and I are unanimous that in these circumstances this Parliament cannot sensibly continue. I urge hon. Members to implement the clear decision of principle taken on 28th October last and to cast their votes for the Second Reading of this Bill.” [HC Deb 17 February 1972 vol 831 c753] The Second Reading of the EC Bill was approved by just 8 votes (309 to 301).

Even after the Second Reading, the Government could have been defeated on a fundamental provision of the EC Bill in the Committee stage. The struggle to obtain Parliament’s approval for the EC Bill even resulted in a “guillotine motion” being proposed to the House and adopted. Ratification of the Accession Treaty was ultimately achieved because the Government succeeded in commanding a majority in the Commons on motions and amendments throughout the 300 or so hours of debates in the Commons. [source]

The referendum issue

At various times during 1971-72, the Government faced calls to hold a referendum or a general election to approve the UK joining the EEC. Amendments were put down to defer the ECA 1972 coming into force until a referendum was held and entry into force of the Act had been approved by affirmative resolution of each House of Parliament. The proposed Amendment No. 205 provided for “a consultative advisory referendum, having no binding effect upon the Government“. A prominent backbench MP who was a lawyer, Sir Derek Walker-Smith stated: “It is clear from the terms of the Amendment that the referendum is a consultative advisory referendum, which of its nature cannot usurp the jurisdiction of Parliament. There cannot be anything unconstitutional or derogating from the sovereignty of Parliament in providing means whereby Parliament can exercise that sovereignty with a fuller and clearer knowledge of what is the mind of the people.” [HC Deb 18 April 1972 vol 835 c317]

The amendment was rejected. During the debate, many MPs took a contrary stance to Walker-Smith and warned of the consequences of a referendum, which could weaken Parliament’s standing and the principle of representative democracy as well as cause divisions within political parties. Perhaps the most trenchant speech was made by Harold Lever who said: “It may sound agreeable for us to impose a referendum, but let us not forget what it does to a Government’s successor. It will mean a diminution of parliamentary sovereignty. If there were a referendum to give sanction to this measure, any Conservative in future would be entitled to say “This Act has the sanction of the will of the people, a sanction which has been directly expressed. It can only be repealed by a second referendum.” [HC Deb 18 April 1972 vol 835 c377] Prescient words!

Transfer of powers

A fundamental reason for the need for Parliament to approve the UK joining the EEC was because the powers of Parliament would be diminished. This constitutional and legal aspect of the UK’s loss of sovereignty was the subject of many fierce debates in the Commons during 1971 and 1972. Only an Act of Parliament could recognise a foreign supranational organisation as having legal authority in the UK and could admit into the UK the legal order of such organisation. Only an Act of Parliament could curtail the power of Parliament to legislate in the areas of “competence” occupied by the EEC. The decision to join the EEC was one which involved the establishment of a “new” constitutional settlement. In essence, the House of Commons were faced by a decision which meant that it would shut itself out of the legislative process occupied by Community law; such law was to be accepted en bloc.

To characterise the EC Bill as a mere “conduit” for Community law is to ignore the essence of the constitutional debate which took place in Parliament in 1971-72. Once again, Enoch Powell set out the issue clearly: “And here we come to one of the most fundamental truths of this whole debate, that the power of this House depends, in the last resort, upon its power, humanly speaking, to reverse previous decisions; and not only the power of this House, but the power of those whose servants we are—the electorate. What meaning has the right of the electorate to send hon. Members here unless, so far as legislation and administration can bring it about, what has been done in the past can, if the electors desire it, be reversed?” [HC Deb 17 February 1972 vol 831 c700]

Treaty revisions and enlargement of the legislative ambit of the EEC

It was recognised that existing and new Community laws in the areas of “competences” reserved for the EEC would be admitted into the UK domestic legal order under the relevant sections of the EC Bill. However, it was made clear to the House of Commons that any extension of those “competences” by a new Treaty to which the UK was a signatory would be dependent upon the approval of Parliament. In the debate on 7 March 1972, Sir Geoffrey Howe, the Solicitor General said: “…the Executive would be subject to exactly the same constraints in making such a treaty as are described by Lord Atkin in the passage which has been cited so many times. If the Executive made a treaty which came under this category seeking to extend the scope of the Community institutions, it would know that it did so beyond the limits of what Parliament would affirm at its peril. If the treaty was not so confirmed by the Order in Council procedure, it could not be taken to ratification and would not form part of the Community treaties in the context of this Bill.” [HC Deb 07 March 1972 vol 832 cc1341, 1342 et seq]

In actual fact, the extension of the scope of the legislative powers of the EC/EU by further Treaty Revisions which enlarged the “competences” of the EC/EU has been effected by primary legislation. This has confirmed in an even more emphatic way the principle of Parliamentary sovereignty which the Government recognised and which Sir Geoffrey Howe confirmed to the House of Commons in March 1972.

Roles and powers

The debates in the Commons 1971-72 show that it was well understood that it was for the Crown to negotiate, sign and ratify treaties using the Royal Prerogative powers. However, joining the EEC was a matter that fundamentally affected the UK’s sovereignty. As regards its constitution and laws, a foreign legal order would be admitted into the UK and the powers of Parliament would be reduced. In this way, the “compact” between the British people and the UK’s legislative and executive powers would be significantly affected. Parliament’s approval by way of affirmative resolutions (Motions) of the two Houses and enactment of an Act of Parliament was essential, both as the representative of the British people and as the supreme legislative power. While the Government fiercely defended the Royal Prerogative power, it fully accepted that ultimately it was for Parliament to make the key decision as to whether the UK joined the EEC.

The Miller case has brought into sharp focus the fact that the Article 50 decision and notification are, in effect, acts which have the legal effect of transforming the UK’s constitution and laws. Those acts will create a new constitutional settlement in the UK, even though the moment at which this occurs is delayed until the EU treaties cease to apply under the Article 50 procedure. In 1971-72 only Parliament had the power to alter the UK’s constitution and laws. The same is true today. Where there appears to be “silence” there is a “still small voice” – Parliamentary Sovereignty. At least the Government in 1971-72 had the sense, and respect for Parliament, to recognise this from the outset. [HC Deb 17 June 1971 vol 819 c644]

Simon Renton, solicitor

(Suggested citation: S. Renton, ‘Historical Perspectives and the Miller Case’, U.K. Const. L. Blog (19th Jan 2017) (available at https://ukconstitutionallaw.org/))

12Comments

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1

Stephen Laws on January 19, 2017 at 10:20 am
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This is fascinating but the history & citations do not seem to lead to the stated conclusion. Yes- only Parliament can complete the process, but the Government can take the risk of beginning it before it can be sure that Parliament will do so – and accept the consequences for its own existence if Parliament refuses to do so.
2

Carol Harlow on January 19, 2017 at 10:24 am
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What is interesting here is that Pmt was first ‘consulted’ by motions and only at the point of finalisation was legislation invoked. This runs counter to much of the discussion at present, which has suggested that statute would be necessary to authorise the triggering of Art 50, which is decidedly cumbersome. But perhaps this is necessitated because of the concession that triggering Art 50 is irrevocable?
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  Richard Burnett-Hall on January 19, 2017 at 5:49 pm
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  I agree with your own answer – that the need for statutory authority to trigger Article 50 follows inevitably from the concession, since if the notice cannot be revoked then leaving the EU is bound to happen sooner or later. However I would go further and say that if there is any risk at all that serving the notice could result in the UK leaving the EU without any further intervention by Parliament, then statutory authorisation must be given first. There are at least two possible scenarios. (1) Even if the UK has a change of heart and it is determined that an Article 50 notice can be revoked by virtue of the Vienna Convention, only the CJEU can decide that, and its decision might not be given until after expiry of the Art. 50 two year period, which would be too late to prevent automatic EU withdrawal, if any one EU27 country, or perhaps just Wallonia, does not agree to extending the two year term. (2) Negotiations on the terms of withdrawal might well take more than two years to complete – and they almost certainly will if the UK’s future relationship with the EU is also made part of those negotiations – again we will become liable to be thrown out under the terms of Art.50. Hence, any risk of the UK leaving the EU, whether intentionally or by virtue of the terms of Art. 50, however slight, has to be given prior statutory authorisation by the UK Parliament.
4

markpummell on January 19, 2017 at 10:49 am
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such a great piece; answered so many questions that have been quietly raging away in me!!!
5

John Hartigan on January 19, 2017 at 12:35 pm
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Very useful summary of a key issue still overlooked in the Miller case – what did Parliament intend?

However, the role of the electorate in constitutional change is once more overlooked. Consent of the electorate, via victorious general election manifesto pledges, provides the fundamental democratic basis for constitutional change.

This was also the case when Ted Heath took us into Europe. The 1970 Conservative Party general election manifesto pledged:

“If we can negotiate the right terms, we believe that it would be in the long-term interest of the British people for Britain to join the European Economic Community, and that it would make a major contribution to both the prosperity and the security of our country.”

This is argued in more detail in Chapter 3 of Betrayal of Britain which has now been serialised in full and free to read at http://www.dailyglobe.co.uk

http://www.dailyglobe.co.uk/comment/a-legal-referendum/
6

Sean Feeney on January 19, 2017 at 5:32 pm
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This is a fallacious argument, both in substance and in form.

In substance, the historical parallel on which the argument purports to depend, does not exist.

On accession, the UK Parliament had final control of the process once the accession process had been initiated. Europe has final control of the withdrawal process once it has been initiated.

Accession was initiated and achieved without a referendum. Parliament has initiated the process of withdrawal by providing for a referendum on the policy decision of withdrawal. There is clearly no historical parallel with accession on this crucial issue.

In form, the argument begs the question in its purported conclusion.

Simon Renton concludes: “In 1971-72 only Parliament had the power to alter the UK’s constitution and laws. The same is true today.”

The central question the Supreme Court will now have to decide, and which Simon Renton makes no attempt to argue is, I think, whether Parliament has exercised its power “to alter the UK’s constitution and laws” by enacting the 2015 Act which provided for the referendum.
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  Richard Burnett-Hall (alias solchap) on January 20, 2017 at 5:27 pm
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  As I, and others, have said elsewhere, the government intended the referendum to be advisory – even though that conflicted with what was said in the Conservatives’ 2015 manifesto. Thus, on 16 June 2015, in the Commons debate on the Referendum Bill, the then Minister for Europe (Mr David Lidington) expressly stated on behalf of the Government that the referendum was advisory, and described as nonsense an amendment proposed by Alec Salmond (which thus failed) to require a majority for Leave in each of all four jurisdictions of the UK, and not merely an overall majority.
  “Amendment 16 does not make sense in the context of the Bill. The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year. In neither of those cases was there a threshold for the interpretation of the result.”
  Hansard 16 June 2015 col 231
  http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150616/debtext/150616-0002.htm
  Even if they wanted to, they cannot resile from that now.
8

Sean Feeney on January 23, 2017 at 4:29 pm
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Thanks Richard Burnett-Hall

What you, “and others”, or indeed I, say is not an authorative source of law. That will be given by the judgment tomorrow.

You, and others, have not yet provided a legal argument that convinces me why the literal rule of statutory construction and the ordinary meaning of “referendum” do not not apply. See the two ordinary meanings in the Oxford English Dictionary.

You have failed to mention statements by Government proposers mentioned in the legal submissions and oral argument that conflict with Mr David Lidington CBE PC MP’s interesting statement. A conflict noted by the Justices at the hearing.

The judgment should whether this conflicting Hansard material is admissible under the test in Pepper v Hart and what conclusion the Justices reach on this evidence, if it is admitted.

The legal submission in the printed case of Lawyers for Britain, with which I agree, is that the referendum result raises a novel point of law, requiring statutory construction, since it is contended that this is the first UK-wide referendum to disagree with the status quo.
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  Richard Burnett-Hall on January 23, 2017 at 9:08 pm
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  Sean Feaney, there is nothing significant between us. If the statements to Parliament are admissible, and I personally think they should be if the Justices are minded to give any serious consideration at all to a mandatory interpretation, I would say that Lidington’s trumps the others, because his statement was intended to, and evidently did, play a part in the failure of Alex Salmond’s proposed amendment to be included in the Bill. Had it been, we would all now of course be in a very different place, so that is no small matter. The referendum does indeed raise a novel point of law but, again in my relatively inexpert view, if the Referendum Act is to be taken to debar Parliament from taking action inconsistent with the vote, I would have expected that to be expressed in clear terms in the Act itself – that is not the case, and of course Lidington’s statement denies it totally. Even if all that was not enough, you or someone would have to tell me whether the Leave vote would have been complied with if the UK were to leave the EU but remained a member of the EEA, with full unfettered access to the single market and all that goes with that – an option I would in many respects find quite acceptable..
  
  But the Supreme Court is supreme, and we shall both be reading their judgment(s) tomorrow with exceptional interest.
  - 10
    
    Sean Feeney on January 25, 2017 at 11:18 am
    
    Thanks Richard
    
    We disagreed (academic now judgment has been given) on the weight of the Parliamentary evidence. Mr Lidington’s statement must be seen to have been deliberate since policy documents make it clear that officials carefully check Ministerial statements and corrections are given if necessary.
    
    Despite that, and the judgment, my view remains that the weight of the Parliamentary evidence was that the referendum was intended by its Government proposers to be decisive.
    
    However, the Parliamentary evidence was in my view inadmissible under the Pepper v Hart test (mentioned only implicitly in the judgment by a qualification “normally”) since it is absolutely clear from the ordinary meaning in the OED that referendums are decisive.
    
    There is no textual evidence In the 2015 Act to depart from this meaning, so I think the case was wrongly and peversely decided.
11

Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association on February 8, 2017 at 7:39 pm
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