The Brexit court case (Miller/Santos): Day one digested

Here are some of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State. mainly to do with Lord Pannick’s first day arguments for the claimants. The links to the transcripts appear at the bottom along with quoted cases and comment. A report/analysis of the Supreme Court case is here: What if Eadie was right?

Firstly, two extracts from the first day of this case (Oct 13)

Exchange between Lord Justice Sales and Lord Pannick QC (for Miller) at page 54/55 of the draft transcript:

SALES LJ: Am I right in thinking that you  say that the effect of the argument for the government  would be that there wouldn’t need to be a repeal of the  1972 Act or section 2 of it, it is just that the content  of the obligation in section 2, EU rights, would fall  away, because they would cease to be EU rights?
16   LORD PANNICK: Precisely. Your Lordship is very aware and  I am not going to enter into any political debate, but  your Lordship knows that the government have announced  that there is going to be a great repeal bill which is  to be produced some time in the next session. I say  that the consequence of the defendant giving  notification will be that at a point in the future, it  is inevitably the case that the United Kingdom leaves  the EU and the consequence of that, as a matter of law,  is that all of the rights enjoyed under section 2(1) and

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section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say  nothing about that. It will not affect those questions.  Those rights will fall away as a consequence of the  United Kingdom leaving the EU. Because when we leave,  there are no treaty obligations. That is the whole  point of leaving. And indeed that is the government’s  intention. This is not a happenstance, this is the  whole point of notification. Notification is intended  to remove the current substance of section 2(1) and  3(1).

Note: The European Community Act at 2(1) says:
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable EU right’ and similar expressions shall be read as referring to one to which this subsection applies.”

At 3(1) it says: “For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court.”

So Pannick is arguing that when Britain withdraws from the Treaty, there will be no reference point for Ss.2(1) and 3(1) of the ECA – since the Article 50 notification will be notice that Britain will no longer (at some point in the future) be bound by the treaties mentioned in those sections. This suggests he holds to the “dead letter” view on these Sections – that they become (prospectively) nul and void on issuing Article 50 notice. If so, the Government via its Crown prerogative, has interfered with an Act of Parliament, contrary to constitutional norms.

For Deir dos Santos, Dominic Chambers QC said this (at page 167 in the transcript):

[U]nder this proposed bill, on the UK’s withdrawal from  the EU, the 1972 Act will be repealed and the current EU  law will be transposed wholesale into domestic law, to  be chewed over at leisure by Parliament in the months  and years ahead. That is the proposal. But in our  submission, that is topsy turvy. What it amounts to is  the executive setting itself up as a de facto  legislature at the Article 50.2 notification stage. The  executive will be saying to Parliament at the  notification stage ‘We have, without consulting you, set  in train an unstoppable process of withdrawal from the  EU and it is up to you, Parliament, to sort out the  consequences in two years’ time, when the withdrawal  takes effect’. That, in our submission, is what in  reality is happening here and we say that is not  permitted under the doctrine of parliamentary  sovereignty, because it presents Parliament with a fait  accompli. And it deprives Parliament of the choice of  whether or not its enacted legislation should be  repealed because in those circumstances, Parliament will  have no choice either to repeal its enacted legislation  or it will simply just fall by the wayside. Either way,  the rights will have been lost.  Now, we submit that Parliament cannot lawfully be

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forced into this position by the executive because it is  directly contrary to the negative side of parliamentary  sovereignty, as described by Dicey. By acting as it is  proposing to do, the executive will be doing nothing  less than suborning the will of Parliament, as  manifested in the 1972 Act and other enactments which give effect in domestic law to EU law rights.

This is a more strongly argued version of the “repeal, amend, dead letter” argument – that Parliament will be forced to act ie amend or repeal the legislation by the fait accompli that Britain will be out of the EU and the ECA will become void anyway. But the “suborning” of Parliament would be just that ie inducing Parliament to repeal the Act and replace it with sovereign rights derived from a snapshot of the EU law landscape – but inducing it by political means. No one can say Governments have never suborned Parliament to get Statutes through – and courts will of course recognise those Statutes however much suborning goes on – see  Edinburgh and Dalkeith Railway Company v John Wauchope. (Thanks to bailli.org for this ancient and important case.)

 The first day of the case digested (Oct 13)  

LORD PANNICK: Your Lordships know the case for Mrs Miller,

is that prerogative powers may not lawfully be exercised by the minister because their use in this context would remove rights established by Act of Parliament, and

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would preempt the decision of Parliament, whether or not to maintain those statutory rights. That is our submission, which I will seek to develop. All the more so, we say, when this question of the legal limits of

executive power arises in the context of one of the most important of our statutes, the European Communities Act, which is the source of so much of the law of the land.

…

we are not inviting the court to address, nor would, I respectfully submit, the court wish to address, the substance of what Parliament may say if, as we contend, the defendant has no legal power to notify using prerogative powers, and if Parliament were hereafter to be asked to give statutory authorisation. If we are correct in our legal submissions, and if the government were then to place a bill before Parliament, it would be entirely a matter for Parliament whether to enact legislation and in what terms. Parliament may decide to approve such a bill, authorising notification. Parliament may reject such a bill, or it may approve it, with amendments which may impose limits on the powers of the defendant.

[This is to challenge the suggestion that the use of the prerogative cannot be challenged in court because it would imply a court telling Parliament how to behave – contrary to UK constitutional norms including the Bill of Rights 1689. So at p.8 Pannick says: “Our case, of course, is that these proceedings raise an issue of law. An issue of law is for the court to decide, and the declaratory relief we are seeking would not trespass on the powers of Parliament. On the contrary, we say it would uphold the powers of Parliament.”

LORD CHIEF JUSTICE: The question really was directed that once notification is given, it can’t be given in terms that we give notice but it is conditional, in that it is — the terms again, are subject to parliamentary approval.

LORD PANNICK: No.

THE LORD CHIEF JUSTICE: Your answer is that the UK government cannot reserve parliamentary approval to anybody at the outset, it is an absolute notice. LORD PANNICK: Yes. The United Kingdom has to make up its mind. And the United Kingdom has to decide, are we going to give notification of withdrawal?

…

LORD CHIEF JUSTICE: What you are saying is that in paragraph 1 of Article 50, is where it says “any member state may decide to withdraw from the Union, in accordance with its own constitutional arrangements”, you can’t say; well, the executive can give notice, but Parliament has to approve the terms. It can’t give that sort of notice.

LORD PANNICK: That is my case … It is of vital importance to our case that the agreement or otherwise of Parliament is irrelevant … I say the whole point of this regime is to say to a member state, “If you decide to withdraw, there are consequences.” And the consequences are that the treatise will cease to apply to you, irrespective of what, domestically, may happen thereafter, once a notification is given. That is the whole point behind our submission.

…

My Lord, your Lordship’s other question was whether

or not it would be possible to withdraw a notification once it has been given. And our submission, again, is that it is not possible for the United Kingdom, once having given a notification, to withdraw that

notification. Article 50 is deliberately designed to avoid any such consequence. There is no mention of a power to withdraw. And the very possibility of

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a power to withdraw a notification would frustrate, again, Article 50(3), which sets out in the clearest possible terms, what the consequences are of giving the notification under Article 50(2).

…

And it is the action on the international plane of giving notification which leads to the removal of a whole series of rights, important rights, which are 2 conferred by Parliament in 1972, and thereafter, and

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if it can’t be given conditionally and it is irrevocable, then

we royal those rights are removed, whatever Parliament may think about it at a later stage.

…

[On the referendum]

LORD PANNICK: What is absent from the 2015 Act is any provision specifying what consequences, if any, should follow from the referendum result. The Act says nothing on that subject. And it is of interest that the Act says nothing on that subject, because when Parliament does 2 wish to specify the consequences that should follow from

2 a referendum, it says so [eg the AV referendum of 2011].

…

He [the author of the Government’s skeleton argument] does not say that he has a statutory power conferred by the 2015 Act. What his skeleton argument suggests is that the 2015 Act, and the referendum which it authorised, is not a source of legal power to give notification, it is a justification for the use of prerogative powers to give notification.

[Pannick is saying that the government view is not that the referendum result requires the Government to withdraw from the EU but gives the basis for a reasonable decision under the prerogative – which requires an assessment of the good of the country coupled with reasonableness, but does not require a vote in Parliament or parliamentary legislation. He adds that the government argument was also that it had always made clear it would abide by the referendum. Later he answers this by saying “Government policy is not law”– see below.]

…

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[T]he issue in these proceedings is not whether it is justifiable for the defendant to use prerogative powers [ie not the issue of rationality]. The question for the court, in my submission, is whether the defendant has lawful power to use the prerogative. And therefore the defendant’s arguments as to whether he is justified in using such a power are wide of the mark. Our challenge is to whether he has legal powers in the first place, not whether he is justified in using them, if he does possess them … there is nothing in the 2015 Act to suggest that they are altered in any way by the 2015 Act. The common law limits on the use of prerogative powers cannot, in my submission, be altered by an Act of Parliament which says absolutely nothing on the subject … I say

the only real issue in this case, is whether the defendant can use prerogative powers in a context where their use will defeat rights which have been conferred by Parliament itself.

…

Government policy is not law . The assertion of government policy takes the defendant, with respect, nowhere, and in any event, none of the policy announcements which are referred to, and the understanding on which the referendum took place, addressed the issue in this case … whether the government may act unilaterally to notify or whether it needs parliamentary approval to do so.

LORD JUSTICE SALES: When you say parliamentary approval to do so, do you mean primary legislation?

LORD PANNICK: Yes.

LORD JUSTICE SALES: Not votes in either house?

LORD PANNICK: No, a mere motion would not suffice. And the, again, the reason for that, consistent with what I am submitting, is that a mere motion cannot abrogate rights

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that have been conferred by Parliament, only –

LORD JUSTICE SALES: It is not primary legislation.

LORD PANNICK: No, you need primary legislation.

…

LORD PANNICK: [T]he logic of my friend’s [ie the lawyers for the Government] arguments for the defendant is that the defendant has to say that despite the existence of the 1972 Act and other legislation conferring statutory rights, it would be open to the defendant, as a matter of law it would be open to the defendant, to use prerogative powers to withdraw from the EU under Article 50, even if there had been no referendum. And that would, I say, be a quite remarkable state of affairs that under prerogative

powers, that could be achieved. That has to be my friend’s case.

[Pannick suggests here (and later) that the logic of the Government’s argument is that Theresa May could just wake up and decide to leave the EU. But he fails to acknowledge that the prerogative is subject to judicial review on the basis of rationality as well as vires (whether she has the power to utilise it in a particular case). That there has been a referendum might allow an argument that its use is rational – which is presumably why Pannick is not running a rationality case.]

 

…

[W]hat the 1972 Act recognises and implements is the fact that EU law confers rights and imposes duties, but let’s focus on rights, it confers rights at international level which take effect in national law. And more than that, those rights are not defined as at the date of any domestic implementation. They are rights which are altered from time to time by institutions not answerable to the Westminster Parliament. And that is not all. The rights take priority over inconsistent national law. And the rights are interpreted as to their scope, as to their meaning, at international level. They are determined by a court of justice in Luxembourg, whose rulings take priority over those of domestic courts, however senior. And my

Lords,

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it is the irony of these proceedings that precisely these characteristics of EU law, which are not in dispute, I apprehend, but it is precisely these characteristics of EU law which are both the reason why the defendant wishes to notify the UK’s intention to withdraw from the EU, in order to restore, as the defendant would put it, national sovereignty.

…

Of course there is no question but that a treaty — under our constitutional law, a treaty is not self executing. There is no

dispute about that. Treaty obligations alter domestic law, only if and to the extent that an Act of Parliament so states. What Parliament has done in the 1972 Act is to make EU law a part of United Kingdom law.

[Rights under EU law include free movement, vote in state of residence, non-discrimination on grounds of nationality. The Lord Chief Justice asked for a list of rights that could not simply be re-enacted by Parliament (and hence presumably would be part of the “Great Repeal Act” ie, transposed into UK legislation).]

LORD PANNICK: [in reply]: It’s not possible for Parliament to re-enact a right to vote in the European Parliament. It is simply inconceivable. There is a statute which confers that right and Parliament simply cannot confer a right to vote for a member of the

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European Parliament. Inconceivable. That is one example. A second example is once we leave, assume, this is your Lordship’s question to me, assume that Working Time Directive, or other provisions are re-enacted, its quite impossible for Parliament to re-enact that my client or anybody else should have a process right, an absolutely crucial process right, to obtain a determination of the Court of Justice, in Luxembourg, as to the meaning, the scope and the meaning

of that right. That will go forever. That is not possible. And it is also quite impossible for Parliament, of its own volition, to confer on my client, or anybody else, a right to free movement and all of the other fundamental rights throughout the community, free movement of services, goods, a person’s right of establishment. Parliament cannot do that of itself … If you are going to take them away, then you need parliamentary authority. You can’t just do it as an act of the executive.

[Later he says “Parliament, of itself, simply cannot restore those rights once we leave the EU, as we will if notification is given. Not least because the agreement of other states will be required to restore any of those rights. The decision of Parliament is simply preempted” (p.65).]

…

MASTER OF THE ROLLS: [D]o you say that the executive act cannot remove, let’s say, a common law right?

LORD PANNICK: Certainly. There are many cases, for example, the courts have said in celebrated administrative law cases that where there are fundamental rights recognised at common law, such as access to the court, it is not open to the executive to take action which will deprive people of those rights. You need parliamentary authority. And if necessary, I can show your Lordship those cases. This is a stronger situation, in that the rights are recognised by Parliament itself.

[Pannick notes cases such as “Factortame, Thoburn in the Divisional Court, Buckinghamshire in the Supreme Court — where the courts have described the 1972 Act as a constitutional statute, a statute that has a particularly high status”.]

…

Great Repeal Bill

LORD PANNICK: the government have announced that there is going to be a great repeal bill which is to be produced some time in the next session. I say that the consequence of the defendant giving

notification will be that at a point in the future, it is inevitably the case that the United Kingdom leaves the EU and the consequence of that, as a matter of law, 2 is that all of the rights enjoyed under section 2(1) and

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section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say nothing about that. It will not affect those questions. Those rights will fall away as a consequence of the United Kingdom leaving the EU. Because when we leave, there are no treaty obligations. That is the whole point of leaving. And indeed that is the government’s intention. This is not a happenstance, this is the whole point of notification.

[He notes later, page 70, that, for example that European Parliamentary Elections Act, the UK statute to enact EU law on elections, is frustrated – in other words a piece of parliamentary legislation, albeit passed as a requirement of EU membership, is rendered nul.]

Cases

[Pannick goes through the cases (see below) supporting the view (per Norton LJ in Laker Airways): “The Secretary of State cannot use the Crown’s powers in this sphere, in such a way as to take away the

rights of citizens.”

LORD JUSTICE SALES: Again, Lord Pannick, as I am reading at the moment, the speeches in this case, they all turn on implied abrogation of the prerogative power by the

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relevant statute … So unless you can assist us further, I don’t, at the moment, get from this case, support for what I understood to be your wider proposition.

LORD PANNICK: [On the Fire Brigades case]: the case also is authority for the proposition that the minister, by the use of prerogative powers, cannot take action which will frustrate the substance of that which Parliament has already enacted. And if your       Lordship thinks that it is necessary to put that proposition in terms of what Parliament implies, then as I have indicated, I am quite happy to put my submission       on the basis that the enactment of the 1972 Act, the       enactment of the Parliamentary Elections Act, impliedly is a statement by Parliament itself, that the rights which those statutes create, cannot be set aside or       frustrated by the executive. I am very happy to put the       case that way. But I say that that is, with respect, artificial, because the more general principle on which I rely is a principle that where Parliament has established statutory rights, and it has, they cannot be set at nought. They cannot be taken away by executive action on the international plane. And this case is a most unusual case, because of the context that the international plane is inextricably linked to domestic rights, and obligations. This is not a normal case where action can be taken on the international level, which does not have a consequence on the domestic level … There is nothing surprising about a constitutional principle that if Parliament has conferred statutory rights, a minister can’t take them  away.

[He set out the case he was answering: the referendum; that restrictions on the prerogative should be expressed explicity in parliamentary legislation to work – not so in the European Communities Act 1972 etc; He points to the European Union Act 2011 which says: “Parliament enacted that a treaty which amends or replaces the TEU or the TFEU is not to be ratified unless a statement relating to the treaty was laid before Parliament, in accordance with section 5, the treaty is approved by an Act of Parliament and the referendum condition or the exemption condition is met.” (As is later pointed out by James Eadie for the Government, this Act was to avoid a “democratic deficit” of important treaty changes with little or no parliamentary say.)

Pannick notes: “your Lordships see a number of specific statutory restrictions on the power to enter into a treaty, which amends or replaces the TEU or the TFEU” (so his implication is such provisions apply equally to issuing an Article 50 notification of withdrawal or else show Parliament has balked at giving powers to remove/change rights to the Government under prerogative). He points to part 2 of the Constitutional Reform and Governance Act 2010 section 20: “a treaty is not to be ratified unless a Minister of the Crown has laid before Parliament a copy of the treaty, (b)the treaty has been published in a way that a Minister of the Crown thinks appropriate, and c) period A has expired without either House having resolved, within period A, [21 sitting days] that the treaty should not be ratified”.

PANNICK: The common law authorities recognise that prerogative powers may not lawfully be used, where their exercise deprives individuals of statutory rights or where the exercise preempts parliamentary consideration. That is my common law submission. It is either good or it is bad. But that is the submission. And the second answer that I give is that if I am right
13 in the submission that those are the common law limits on the lawful use of the prerogative, then it is nothing to the point that Parliament has imposed other restrictions on the use of prerogative powers. Parliament has not touched the common law restrictions on the use, the lawful use, of prerogative powers. A common law restriction on the use of prerogative  powers can only be removed or altered by an express statutory provision. Especially, we say, in the context of an interference with the rights conferred by the 1972 Act, given its constitutional status. The fact that Parliament has not addressed the common law use on the limits of prerogative powers simply means in my

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submission, and elementarily means, that Parliament is content for the common law limits to continue to be applied by the courts.

LORD JUSTICE SALES: And if this court doesn’t accept your wider submission about common law limits, what do you say about —

LORD PANNICK: Well then I lose the case. I lose the case.

LORD JUSTICE SALES: — the legislation? [Sales asks if there is an alternative submission, that there is implied abrogation of the prerogative power. Pannick agrees, viz “once Parliament has created statutory rights it is implicit in that creation that Parliament must have intended that the executive cannot remove them or frustrate them.” But ultimately accepts if he loses his main contention, then he loses his “implication” point: “Because the only basis upon which I am putting forward an implication is that Parliament has created statutory rights. And the argument, I accept, doesn’t add a great deal of substance. The only reason I put it forward is because my Lord, Lord Justice Sales [proposed it, presumably].]

…

The third argument [of the Government], I just want to touch upon is  that the defendant then says, it is paragraph 30 of his   skeleton argument, and elsewhere, he says well, there is

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nothing in the 1972 Act or indeed any other statute  which requires the United Kingdom to remain a member of  the EU. And that, of course, is correct. But it  doesn’t address the legal complaint, which I have  identified on too many occasions now; that notification  will take away statutory rights and preempt Parliament’s  decision on the matter. The fourth argument, the more substantial argument, paragraph 31 of the defendant’s skeleton argument, is that section 2(1) of the 1972 Act … “What section 2(1) of the 1972 Act does is give effect to the UK’s obligations under EU law whatever they may happen to be at any particular point in time.” [ie has no effect on Britain being in or out of the EU – only on the legal set-up if it’s in ie “liabilities obligations and restrictions from time to time created or arising by or under the treaties”.]

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Our submission is that those words do not assist the  defendant. [S.2(1) recognises new and evolving EU rights via EU laws and Court of Justice decisions.] … But what section 2(1) does not contemplate is a situation in which there are no rights and duties under the treaties for the purposes of that provision. And even less so because a minister has, by the use of prerogative powers, caused that to be so. Our submission is that section 2(1) and the language which it contains is intended to give effect to the rights and duties arising from time to time by reason of membership of the EU. Section 2(1) is not intended to give effect to rights and duties arising from membership of the EU existing from time to time.

…

[W]hatever the position is in  international law as at 1 January 1973, the clear  meaning of section 2(1) is that Parliament was concerned  with the rights and duties which arise from time to time

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under the treaties. Parliament recognised, it had to  recognise, that the rights and duties that arise on the  1 January 1973 would not necessarily be the same rights  and duties the following year, or ten years later. And  Parliament very wisely was emphasising that what it was  committing itself to was the incorporation into  United Kingdom law of all of the rights and duties,  whatever they may be under EU law from time to time… Section 2(1) is not a provision which addresses or   contemplates the possibility of the United Kingdom   ceasing to be a member of the EU. And indeed, it is   striking that it is no part, rightly, no part of the   case for the defendant that he enjoyed any statutory   power to give notification under Article 50 by reference

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to section 2(1). He doesn’t suggest it is implicit in  section 2(1) that he has a statutory power. He relies,   and relies only, only on prerogative powers.

[The Lord Chief Justice asks whether, prior to the passing of the 1972 Act, the Government could have, by agreement with other member states, “whittled away” rights without reference to Parliament. Pannick notes that Treaty amendments in fact are always followed by a statute to enact them in UK law eg Maastricht, Lisbon. The LCJ notes Section 3 of the 2011 Act fetters the executive (and hence the prerogative presumably)in that changes to the TFEU must be ratified by Parliament.]

LORD CHIEF JUSTICE: I will take you back to what I see   as the most important practical point, the right of  establishment, the right of freedom of movement. To  take those away would require, under an amendment to the  TEU or the TFEU, the treaty would have to be approved by  Act of Parliament.

LORD PANNICK: Yes.
THE LORD CHIEF JUSTICE: And therefore the broader powers under section 2(1), are those restricted by section 2 of
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the Act, so that whereas, when this was originally  enacted, there was a power that the executive could, as  a matter of law, you know, agree with the other member  states “Well, we are getting rid of this right and that  right”, but it can’t do that now because of section 2 of  the European Union Act [Treaties amending or replacing TEU or TFEU – laid before Parliament plus possible referendum].

…

PANNICK: [E]ach time there has been a fundamental  change prior to 2011, there has been an international  treaty which has been agreed but not ratified, and which  states that it does not come into effect until domestic  constitutional arrangements are secured.

THE LORD CHIEF JUSTICE: But does it therefore follow that  on the alternative express or implicit argument, what  you are really saying is that the power under section 2  cannot, as a matter of convention, or more recently as  a matter of section 2 of the 2011 Act, be operated  without the consent of Parliament, and therefore the  prerogative power to amend the treaties has been  restricted?

LORD PANNICK: Well, I am saying that. I am saying that

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that is a consequence of common law. I say this is  a much starker case, for the reasons I have given. That  what the minister is doing is stripping away the  entirety of section 2 and section 3 [of the ECA 1972]. He is removing any  content. That is why I say this is such a stark case …

LORD CHIEF JUSTICE: … But … the operation of the power under Article 50 is, in fact, the operation of a power that can be
16 exercised by the prerogative, which doesn’t require, doesn’t need, an amendment of the treaty.

LORD PANNICK: Well, yes, the case for the defendant certainly is that section 2 has nothing to do with this case. Neither side is contending that section 2 is applicable —
THE LORD CHIEF JUSTICE: No.
LORD PANNICK: — to this case. It is not our argument.
THE LORD CHIEF JUSTICE: And it is not their argument.

[The Lord Chief Justice notes that S. 2(1) of the ECA  1972 (new treaty rights and EU law rights “without further enactment to be given legal effect” in the UK). Pannick says the use of Article 50 removes the “whole substance” of the ECA Ss. 2 and 3. So “It is a case of starting the international notification and committing the state of English law to the removal of various rights, a whole panoply of various rights, which are currently enjoyed”. In the past treaty changes have been ratified and the 2011 Act requires it. The Master of the Rolls wonders if  “the effect of the European Union Act is to create a convention?” Pannick agrees but says it is a convention “with a very solid foundation” – in part because of the constitutional importance of the 1972 Act. Sales LJ suggests it is more than convention “because section 2(1) of the 1972 Act refers
to rights arising under the treaties”. Pannick agrees. He says if a treaty removes a right, such as the right to establishment – setting up a business in another EU country without unfair restrictions – then Parliament would have to ratify the change.]

(It should be noted that Jason Coppel QC, for the Government, in day three, points out that such rights of free movement are actually, in effect, bilateral; if a UK citizen was barred from setting up in France, s/he would go through French courts to get the EU right; so arguably Pannick and the judges are wrong – such rights would not require parliamentary changes because Parliament would be purporting to change the law of, eg, France or being asked to deny a right to eg French people rather than British people).]

LORD PANNICK: Addresses this in the Government’s skeleton argument: “Equally, the giving of notification under Article
4 50(2) to withdraw from the EU, is an act within the treaty prerogative of the Crown which takes place and has effect only on the international law plane.”

And that is the point; no, it doesn’t. If it did, then of course, one would understand the point that is being made by the defendant. But for all of the reasons I have sought to identify, that is simply not the case. The defendant then lists what he says are other examples of the Crown withdrawing from international treaties, but none of the examples raise the question in the present case. Because of the unique or at least exceptional characteristics of EU law [ie withdrawal removes rights enjoyed under domestic law].

Materials

Quotes used from cases

Bingham on prerogative in Chagos case:

“”The royal prerogative, according to Dicey’s famous is ‘the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown’. “It is for the courts to inquire into whether a particular prerogative power exists or not and if it does exist, into its extent. Over the centuries, the scope of the royal prerogative has been steadily eroded. It cannot today be enlarged.”

Tin Council case: JH Rayner v Department of Trade:
Lord Oliver: “The second [this is the second of the underlying principles] is that as a matter of the constitutional law of the United Kingdom, the royal prerogative, whilst it embraces the making of treatise, does not extend to

altering the law or conferring rights upon individuals, or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.”

Case of Proclamations 1610; “”The King, by his proclamations or other ways,       cannot change any part of the common law or statute law or the customs of the realm.”

Laker Airways v Department of Trade

Lord Justice Roskill: “Where a right to fly is granted by the authority under the statute by the grant of an air transport licence, which has not been lawfully revoked and cannot be lawfully revoked in the manner thus far contemplated by the Secretary of State, I do not see why we should hold that Parliament, in 1971, must be taken to have intended that a prerogative power to achieve what is, in effect, the same result as lawful revocation would achieve, should have survived the passing of the statute unfettered, so as to enable the Crown to achieve, by what I have called the back door, that which cannot lawfully be achieved by entry through the front”.

R (Fire brigades Union) v Secretary of State

Prerogative power used to establish a criminal injuries compensation scheme less beneficial than one on the statute books but not brought into force by the Government. Lord Browne-Wilkinson: “My Lords, it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive, so as to frustrate the will of Parliament expressed in a statute and to an extent, to preempt the decision of Parliament whether or not to continue with the statutory scheme, even though the old scheme has been abandoned.”

The case
The first day transcript 13 Oct of the Miller/Santos court case is here (MoJ pdf).
• The second day transcript: Full day transcript for 17 October 2016.
• Third day Full day transcript for 18 October 2016.
• All available at the Ministry of Justice

Cases referred to
A-G v De Keyser’s Royal Hotel Ltd  Wartime occupation of hotel for defence purposes under prerogative – claim for compensation under Defence Act. Parliament ousted prerogative power, so compensation payable ie prerogative couldn’t be used when a Statute existed for the same purpose. Official law report pdf.

R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1993] EWHC Admin 4: Challenge to Maastricht treaty on grounds it transferred certain prerogative powers to the EU without parliamentary authorisation. Rejected

Walker v Baird 1892 AC 491: Treaty of peace could bind subjects without parliamentary sanction.

In re International Tin Council [1987] Ch 419: Making, amending and terminating of treaties is a Crown prerogative so can English courts wind up a body established by international treaty?

Post Office v Estuary Radio (1968) 2 QB 740: Could radio station continued to broadcast in waters no longer “international” under prerogative treaty? No, PO could close it down.

Legislation
Constitutional Reform and Governance Act 2010 Section 20
European Union (Amendment) Act 2008
EU(A)A 2008 Explanatory notes
European Union Act 2011

Comment
Michael Zander looks at the arguments in the New Law Journal
Robert Craig on Day 1 in the UK Constitutional Law Blog
Robert Craig on Day 2