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

Here is the second part of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State for those not wishing to read the 580-odd pages of the transcript. It mainly contains Eadie’s second day arguments on behalf of the Government. They look mostly at questions put by the judges in the case and the answers. The links to the transcripts appear at the bottom along with quoted cases and comment. The digested version of the first day is here. And the third day is here. A report/analysis of the Supreme Court case is here: What if Eadie was right?

The second day of the case (Oct 17)

Ms MOUNTFIELD: Since the passage of the European Communities Act, no EU treaty has ever been ratified without prior Parliamentary authority, and I submit that that is necessary because of the two otherwise inconsistent constitutional principles. The Crown can make treaties, but not if, or to the extent, that they confer rights or impose liabilities in domestic law, or withdraw rights and liabilities in domestic law.  I say that the consequence of that is that while the European Communities Act is in force, the prerogative power, either to make further treaties or to amend treaties, or to withdraw from treaties is impliedly abrogated, because otherwise it would be the Crown and not Parliament which would be conferring or withdrawing rights.If there is any doubt about that, section 2 of the European Union Act expressly provides that the Crown may not ratify a treaty which amends or replaces the existing treaties without Parliamentary authority, through various procedures.

I submit that since the purpose of that provision is to prevent the Crown from altering the foundations of EU  law as it applies within the UK without Parliamentarysanction, and we have quoted William Hague introducing the 2011 Act saying that, by necessary implication, that restriction extends to any act of the Crown which would withdraw from or revoke those treaties without  Parliamentary sanction, and thereby remove directly enforceable rights.

 I don’t have more time to develop that argument in detail, but I would invite the court to consider  carefully the submissions on this in our skeleton argument at paragraphs 29 to 41 and 47 to 50. I then turn to my fifth proposition, which is thatnotification of withdrawal from the EU, using the prerogative, would be unlawful because it would be  ultra vires the Bill of Rights. … The relevant provision is very well known, the late dispensing power.

“The pretended power of dispensing with laws or the execution of laws by word    regal authority as it had been assumed and exercised of late is illegal.”

… I invite you to find that the relevant definitions of “dispense” in this context are to forego or to disregard; and to execute a law or purpose is to put it into effect.  So to forego or to disregard the putting into effect of a law or the purpose behind the law. So for this limb of my submissions, I have to submit that in practical terms, the putting into effect of the purpose of the European Communities Act, that purpose being to enlarge the EU by having the UK as a member of it, would be foregone or disregarded if a minister of the Crown were to act so as to require the UK to leave the EU.  So too would the purpose and putting into effect of many other laws, like the name    European Parliamentary Elections Act 2002.

Page 11

I want to take your Lordships, I am conscious of the   time, to three authorities which support this   submission. The first is the case of  Proclamations …  of course it pre-dates the Bill of Rights. But I want to show you it, because it is an example of the pretended power, or gives an example of the pretended power of regal authority, which Lord Coke gave as an example of a legal action, to which in my submission the Bill of Rights was referring when it said this these dispensing powers had been used, assumed and exercised, illegally before it was brought in to force. Lord Coke said: “We do find diverse precedents of proclamations which are utterly against law and reason and for that void.” [Coke continued:]

“An Act was made by which foreigners were licensed to merchandise within London. Henry IV, by proclamation, prohibited the execution of it, and that it should be in suspense until the next Parliament, which was against the law.”

So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time.

MR EADIE [for the Government]: The prerogative, it has often been said, is the residue of powers left in the hands of the Crown. We submit that words need to be added to the end of that description of the prerogative and the correct and true principle is that the prerogative is the residue of powers left in the hands of the Crown by Parliament. That is true as a general proposition. It is all the more true in circumstances in which Parliament has decided to impose some, but specific, controls in the relevant area, where the prerogative operates.

LORD CHIEF JUSTICE: But the basic principle is, it is reflected in the cases dealing with our adherence to the European Convention before the Human Rights Act; that if the Crown enters into a treaty, no rights can be derived by citizens under that treaty as a matter of domestic law and so it can’t affect domestic law, so you don’t quarrel with that principle.

MR EADIE: I don’t, I don’t quarrel with that basic principle.

THE LORD CHIEF JUSTICE: Okay.

It is accepted by everyone that if the Crown enters into a treaty it has no effect on the rights of the citizen until it is given effect to by domestic law. But what is clear you are saying, I think, is that the opposite isn’t true; that you can withdraw from a treaty defeat the rights that Parliament has conferred.

MR EADIE: You can withdraw from a treaty but the reason I say I don’t rely on that distinction is because my base proposition is that the impact, whether or not the exercise of the prerogative impacts to increase rights or to decrease them, whether or not that position ensues from either the making of the treaty or from the      withdrawal of the treaty, ultimately involves asking the same question. Which is whether or not Parliament has chosen to leave that power in the hands of the Crown. Parliament could, for example, have passed an Act that said in in [its?] sphere the rights and obligations that are available in domestic law shall be those that flow from the making of a treaty.

LORD JUSTICE SALES: But night not the inference of Parliament’s intents be rather different depending on the two contexts my Lord put to you.

MR EADIE: It is possible.

LORD JUSTICE SALES: It might not be surprising that Parliament seeks to control the prerogative when it knows the exercise has no effect in domestic law which is Parliament’s concern. It might be said that the context is rather different if the background is that Parliament contemplates that exercise of a particular prerogative power, here the right to withdraw from treaties, will have affects on domestic law, which might be said to be contrary to very strong traditions of the common law, as illustrated by the case of Proclamations and the Bill of Rights.

MR EADIE: My Lord, I don’t disagree with the proposition      that the context is thoroughly important. The question is what is Parliament’s intention, and once one accepts      the proposition that Parliament could leave in the hands      of the Crown a power, a prerogative power, to make or to unmake treaties, even though that power might have      direct or indirect impact on domestic legal rights, the only question that remains is was that Parliament’s intention. My Lord puts to me well, that is a factor,      it is almost like the principle of legality brought into      this context, as it were, which is one of the arguments      again me which I will come back to. But my proposition starts from a submission that Parliament can, and I gave      you the example of Parliament doing it expressly, a hypothetical example of Parliament do ignore it expressly, Parliament can do that even if the effect of that prerogative is it would have a direct and immediate effect on ^.

LORD JUSTICE SALES: You see it might be said that both your argument and Lord Pannick’s argument both refer back to back ground constitutional understandings in order to inform the proper inference as to the intention of Parliament in the 1972 Act. You say there is a background constitutional settlement understanding that conduct of international affairs is for the Crown, Lord Pannick says there is a background constitutional context that the executive can’t change rights which exist in domestic law. Whether it be by common law or      by statute. So at so some level there seems to be a contest between what we derive from these two aspects of the

page 121

constitutional background, as indicators for the proper interpretation of, well, whichever Act one is looking at.

MR EADIE: My Lord, you are right and listening to the argument, there is an element of two ships passing in the night because we both assert a constitutional assumption upon which Parliament has legislated. That is the reason for trying to trace through the steps of this first stage of the argument, because the punch line of it is going to be that the courts have specifically and expressly grappled with the principles that should apply when you are dealing with the abrogation of a pre-existing power of the Crown by way of prerogative and that the appropriate approach in principle is the one developed by the House of Lords in repeated cases in the Court of Appeal thereafter from Decasa, which it might be thought it is notable, Lord Pannick was quite keen not to base his case upon, no doubt because he wanted his ship to be passing to the right of the light or the flag, but my Lord is right.

LORD CHIEF JUSTICE: It is a good advocate’s point.

MR EADIE: The issue in this case is whether Parliament has continued to consent to the use of our prerogative, the well established prerogative of withdrawing from specific treaties, in the knowledge that the withdrawal will create various legal effects within the system, or may do, and I will come to precisely what legal effects are created in due course.

P130

But of course the basic position is that treaties are not self-executing, they exist on the international plane and require Parliamentary intervention before they interpose rights into a domestic legal system. But as all that line of case law before the ECHR became part of domestic law through the interposition of the 1998 Act, there were a whole series of potential impacts, and subsequently recognised to be a whole series of impacts that an action on the international plane can have on domestic legal rights, even if they do not self-execute.

The question that we are here addressing is whether or

page 131

not a specific prerogative such as withdrawing from a treaty has indeed been abrogated; as I have said repeatedly now, that is a question of ascertaining Parliamentary intention. How do you judge that? You go to De Keyser and the set of case laws that De Keyser sets out.

So our case involves no injury to the statement of common law of Lord Oliver. We simply submit that in our case, Parliament has advisedly decided not to abrogate the prerogative, and if and to the extent that the step that would be taken by notification would or might have an impact on to current legislative rights, Parliament will need, in the usual way, to deal with that by legislating.

Eadie argued that, while treaties are not “self-executing” ie they require parliamentary legislation to have domestic effect) they can nevertheless affect domestic law, not least because judges will take account of treaties in their judgments (as they did in the Assange Extradition Act case see Assange, UKIP and Baron Mance)

Eadie [I]nternational law in

the form of treaties entered into in the exercise of the prerogative can indeed have impact into domestic legal rights. That is a principle which accords consistently with the general point that treaties are not self-executing. That doesn’t mean they don’t have or can’t have some really quite significant impacts into rights that exist domestically.

Page 138

Lord JUSTICE SALES: I have slightly lost the thread of the argument. I understand the principles you are referring to, but how do they help us in this case?

MR EADIE: My Lord, they don’t touch the approach which respectfully recommend to the court, which is the De Keyser principle, but I will come in due course to try and analyse a little bit more closely the true nature and scale of the effect of actually starting the process by giving the Article 50 notification on domestic legal rights. It is quite important, we respectfully submit, to recognise that for that purpose, given one is trying to do that nuanced analysis, to see that the principle that English law is dualist does not mean, even at its height, that things done by the Crown in the exercise of the prerogative on the international plane cannot have really quite a significant impact on rights, even if treaties are not self-executing.

LORD JUSTICE SALES: Thank you.

Page 143

Eadie [T]here are numerous examples of situations in which people no doubt, as they are perfectly entitled to do, in which they organise their affairs, both natural and legal persons, by reference to unincorporated treaties which could then be renounced or withdrawn from by the Crown.

Eadie is talking about bilateral rights such as relaxation and reimposition of visa requirements, mutual taxation agreements between states

EADIE: [N]one of this is dispositive, but it does

page 144

indicate that the prerogative, ie the exercise of the Crown’s power on the sphere of international relations, can have real practical and sometimes real legal impacts on to rights and obligations, and there isn’t anything terribly constitutionally surprising about that. The correct approach is to analyse whether Parliament has set its face against the exercise of the prerogative in any particular sphere or has imposed control. That is ultimately the question. But one cannot derive from the authorities, we submit, any sort of broad and absolute proposition of the kind on which my learned friend Lord Pannick sought to build his case.

… There isn’t any broad, general proposition that steps on the international plane and the exercise of the prerogative are unlawful, if and to the extent that they either do or they might have an impact on domestic legal rights.

Eadie and the Master of the Rolls discuss a theoretical double ta treaty between countries (ie harmonising people who work and are taxed in both) as an example of a treaty act that conferred rights directly on citizens.

22 THE MASTER OF THE ROLLS: Can you give me an example in practice of how a double taxation treaty negotiation, withdrawing a benefit under it without legislation, could be applied by analogy here? Can you give me,

page 145

rather than taking the general principle, can you give me an exact example of such a situation.

MR EADIE: Of the situation of the double taxation treaty?

THE MASTER OF THE ROLLS: You are relying on the double taxation principle as somehow supporting the proposition. I am not baulking at that, I just want to a concrete example. Because for example in my own mind, if you have a double taxation agreement, it might be something along the lines, so far as British citizens are concerned, of saying that you can make a deduction for British taxes in relation to something that occurs elsewhere, your company or whatever, operating in some foreign country.

MR EADIE: Yes, in Malta. The examples I gave you, the documents I gave you are Maltese by way of illustration.

THE MASTER OF THE ROLLS: There, let’s assume that the Crown negotiates something which involves a curtailment of that right. It would still need Parliamentary intervention to remove the right, by way of some finance bill, from a person in this country to make the deduction. That would be necessary. And indeed Parliament might, one would have thought, Parliament might say: well, actually we don’t agree with the government that this deduction should be disallowed, we would like to continue it.

Page 146

MR EADIE: Yes.

THE MASTER OF THE ROLLS: I just want to understand you how say that a double taxation agreement would serve to support the general argument that you are advancing.

MR EADIE: My Lord, I think the answer to that is that the double taxation treaties do indeed involve — I think they involve a bespoke process by which you do have to go back to Parliament, but afterwards. Much of this — there is therefore a sequencing involved. What happens in terms of sequencing is that the double taxation treaty is renegotiated or different provisions are arrived at. Then, as my Lord says, there is interposition into domestic law and Parliament reacts. But the fact of the matter is and the point is that the royal prerogative has been exercised to create, as it were, the new agreement, which if Parliament then said: we don’t like that; which they would be constitutionally perfectly entitled to do because they are supreme, they do that afterwards.

THE MASTER OF THE ROLLS: Yes.

MR EADIE: So, as it were, it could just as much be said in that context as it could in ours, that there is preemption by the exercise of the prerogative right there, which is to renegotiate and enter into a new — double taxation or whatever it might be, agreement. It

page 147

doesn’t preclude Parliament from then saying: well, actually, we don’t much like the look of it; nor does it necessarily preclude — maybe my Lord is right in terms of that specific context — Parliament having potentially necessarily to alter the domestic scheme to take account of that new arrangement —

THE MASTER OF THE ROLLS: All I am saying is that all that shows, that particular example, is that a Parliamentary intervention — in order to give effect to what has been negotiated by the Crown and its prerogative power, in order to give effect to it, Parliamentary intervention is necessary and it is substantive. It is not simply: well, there is nothing else we can do; it is actually a substantive exercise of Parliamentary supervision. That is the point I am making.

MR EADIE: My Lord, yes. I don’t mind that, if I can put it that way. For the purposes of my argument, I don’t mind that because in that context, whether it intervenes substantively or not to alter things, the fact of the matter is that the prerogative has been exercised in that way. Now, that isn’t an example of, as it were, having a direct and immediate impact on to domestic law; it is an example of the Crown exercising its power on the international plane to enter into an agreement which it then, as it were, presents to Parliament to say yes

page 148

or no. If it says no, then the Crown has to go back and renegotiate, or put up with the fact that it would be in breach of its international obligations.

THE MASTER OF THE ROLLS: Yes.

So Eadie does not see this as undermining his argument. The treaty can be changed and then Parliament modifies the laws to fit in with it – or can reject the changes. (The problem for Eadie, though, is that if the Article 50 notification is final, there is no going back, how can Parliament insist on something different or staying in the EU? Pannick argued it had a gun to its head and the European Communities Act must fall. See above and Parliament holds the cards – for a slightly off-the-wall discussion of this point). Eadie says (p.149) the EU rights “might be replicated”: “That would depend on the outcome of the negotiations, whether an agreement is reached and so on.” But this doesn’t necessarily answer the Pannick point.

MR EADIE I don’t want to get too far ahead in the argument, but one has in our context, just as a basic taxonomy, a set of rights that would require legislative intervention directly, were they to be altered, because they currently sit on the domestic legal statute book, and they would have to be altered by primary legislation which Parliament intervenes to do. You have another set of rights that currently exist

under EU law which might or might not be replicated. That would depend on the outcome of the negotiations, whether an agreement is reached and so on. We know that if an agreement is reached, you have CRAG [Constitutional Reform and Governance Act 2010], the legislation that says you have to go back before you ratify; that legislation is in relation to agreements. Then you have a third lot of rights, which is why my learned friend Lord Pannick liked this lot more than the other lot, where in effect the right which is

page 149

an incident of being and continuing to be a member of the club is hollowed out. I will come back to those, but there are a whole variety of different ways in which those rights would ultimately fall to be dealt with. My limited point in relation to double taxation treaties, accepting all of my Lords’ points, is that that is an example of the Crown exercising a prerogative to create at least a degree of — preemption is not the right word, but it enters into the agreement in a sequence. It then requires legislative intervention, substantive or otherwise. I say requires, but you will understand why I use that word deliberately loosely. Because Parliament is supreme, it can always say: you can enter into whatever agreement you want, I don’t like it; and you, the Crown will then have to go back and put up with being in breach of your international obligations or renegotiate the agreement.

As I say, the broader point that I make, and it is a limited point in relation to this aspect of it, is don’t be seduced, as it were, by the idea that says: if the Crown exercises its prerogative on the international plane, and that more or less has an impact on current domestic rights, that fact in itself renders the exercise of the prerogative unconstitutional and in some

page 150

way unlawful.

Here Eadie has distinguished between A: rights directly in statutes passed by Parliament; B: those in statute pursuant to a treaty obligation (both sets needing parliamentary legislation to change); and a third set, relied on by Pannick to argue for a parliamentary vote on Brexit, C: rights of being a member of the EU (which, presumably are only some EU rights; the others are in category B).

Eadie: [W]hen that [prerogative] power is exercised on the international plane by the Crown, it is doing so on behalf of the UK as a whole, the country as a whole, including all of the relevant institutions and including Parliament. It is back to the same theme, that the prerogative in all of its forms, including specifically in this form, exists as a result of the permission,

page 152

express or implicit, of Parliament.

To the extent that Parliament wishes to control that process, it has e post and e ante ability to do that. It has e ante ability to do that, pursuant to De

page 153

Keyser, that is the De Keyser question; and it of course in constitutional terms has e post control over that, because it is open to Parliament because it is sovereign, simply to say: well, we may have entered into that agreement but we are not going to give effect to it. We are going to take a different decision.

But none of that expression of principle, or that basic proposition that treaties aren’t self-executing, means or implies that legislative permission is needed before, as a sequencing matter, before making or unmaking the treaty, or before taking any other step on the international plane. The fact that Parliament will need to legislate if it is to incorporate the matters covered by a treaty into domestic law doesn’t limit, therefore, implicitly or otherwise, the availability of that power in the first place, without legislative authority, for the reasons that I have given.

So Eadie says “sequencing” is not an issue ie the parliamentary process can come after the issuing of Article 50 notice. He gives examples of agreements made in Brussels by the Government under prerogative that then are put before Parliament. He notes: “[I]f that is what the Crown has agreed to on the international plane, there is then a obligation to implement that through domestic legislation, but afterwards it doesn’t bind the hands of the Crown, it doesn’t prevent them in constitutional terms, that is simply the sequence in which the usual practice sits.” Such a procedure is not “offensive to parliamentary sovereignty”

Eadie: [T]he Rees-Mogg case is authority in this particular context for the proposition that if you are going to abrogate, because of the scheme and depth and detail of the control that Parliament has chosen to impose, if you are going to abrogate in the EU law context, only express [abrogation] will do… necessary implication doesn’t work.

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

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

 

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3 Comments

Filed under Analysis, Constitution, EU law, Human rights, Immigration law, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics

3 responses to “The Brexit court case (Miller/Santos): Day two digested

  1. Pingback: The Brexit court case (Miller/Santos): Day two digested | AL's LAW

  2. Pingback: Brexit case Miller/Santos: third day digest | Thinking legally

  3. Pingback: 1297 And All That: how to impress a Brexit judge | AL's LAW

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