Brexit case Miller/Santos: third day digest

Here are some of what seem to this writer crucial exchanges during the third day of the Brexit High Court case R (Miller and Santos) v Secretary of State. They concentrate on exchanges between the judges in the case and the lawyers. The original runs to 160 pages. The digested version of the first day is here. And the second day is here. The links to the transcripts appear at the bottom along with quoted cases and comment. (Note, some page numbers are included; they come at the bottom of the relevant pages ie refer to the text above). A report on the Supreme Court case is here: What if Eadie was right?

The third day of this case (Oct 18)

James Eadie QC on how the Article 50 notification process would work. He notes “there will on any view be considerable further Parliamentary involvement in the future” to which the Lord Chief Justice replied “Mm-hm”.

MR EADIE: [I]f there was an Article 50(2) withdrawal agreement, that would be a treaty between the United Kingdom and the EU.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: As such, it is likely that it will come within the procedures in CRAG [Constitutional Reform and Governance Act 2010]. … It will be a treaty, but I say likely to fall within the procedures within CRAG, because CRAG, like the Ponsonby memorandum which it sought to embody … CRAG only applies to treaties which are subject to a formal process of ratification. See, amongst other things, section 25(3) and (4), and indeed the process of ratification which is the cornerstone of the Act in section 20. Now, almost all treaties are, but not all treaties are, subject to ratification. In other words you can on the international plane enter into an agreement without ratification necessarily following … those agreements do happen but they are pretty rare, and it is considered very likely that this agreement, if entered into, in other words the 50(2) agreement, would be a treaty requiring ratification. Of course one can’t exclude the theoretical possibility that it wouldn’t be.

Eadie describes the “double negative” procedure whereby the Treaty is placed in both Houses of Parliament for ratification or rejection. He agrees with the LCJ that “in the contingency that there was an agreement, Parliament could say no”.

MR EADIE: It is ultimately dependent upon the agreement of the parties to the treaty, whether they want it to be

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subject to ratification or not. But as I say, the view within government is that it is very likely that this treaty will be subject to ratification process in the usual way. Most of them are. It is a pretty rare event for the things to take effect immediately upon accession, as it were.

…

THE LORD CHIEF JUSTICE: But could the United Kingdom and the European Union agree it didn’t need ratification? Is that what you mean?

MR EADIE: They could in theory.

…

LORD JUSTICE SALES: Conceivably, the European Union

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says: we don’t want the uncertainty of being subject to this ratification procedure, therefore we are proposing an agreement without ratification; UK government  says: no, we want ratification; but then you might be in a situation where you don’t get the agreement under  Article 50(2).

MR EADIE: It is possible … As I say, the government’s view at the moment is it is very likely that any such agreement would be subject to ratification, and therefore fall within the provisions of this Act.

LORD JUSTICE SALES: Right. Just to tease it out, that depends upon UK government’s view at the end of a process of negotiation and the view of the European Union.

MR EADIE: Necessarily.

LORD JUSTICE SALES: They both have to agree.

MR EADIE: Necessarily, because the requirement for ratification is a term of the international agreement, which requires therefore the agreement of both parties before it goes in.

…

LORD JUSTICE SALES: Yes.

THE LORD CHIEF JUSTICE: I just wanted you to explain that so people actually understood.

MR EADIE: Yes, I hope that is helpful and I hope you understand why we can’t go further in terms of likelihood or certainty.

THE LORD CHIEF JUSTICE: Of course you can’t. So long as the position is explained so people understand it. It is not for us, or I think for you, to go any further.

MR EADIE: That is the position in relation to the Crown, therefore.

LORD JUSTICE SALES: To state the obvious, it is not Parliamentary approval in the form of primary legislation, but in the form of resolutions of both Houses as set out in section 20.

MR EADIE: The section 20 process does not require primary legislation, unlike the 2011 Act, to which I will come in a moment.

…

[B] efore one gets to that stage, in other words the stage of the possibility of

an agreement and CRAG being operated, Parliament will have, in advance of any of that, or is likely to have a central role in the amendment of the domestic legislation.  You know that prior to the UK withdrawing, prior to that two-year period being reached and prior to any agreement being reached, the government have announced that they will bring forward legislation in the next Parliamentary session, the great repeal bill. Its effect as publicly announced, and if enacted, will be to repeal the European Communities Act 1972, but to repeal it effective at the point of withdrawal; and also to bring in, if I can put it that way, the existing — and where possible, existing EU law, into domestic law at

the point of withdrawal. Now, that, of course, is consistent with my sequencing point. It is permissible and indeed standard for Crown action on the international level to be followed by Parliamentary action implementing that. But the crucial points, it might be thought, that flow from the repeal act for the purpose of this case are first that Parliament will have an opportunity to decide which rights deriving from EU law will be retained following withdrawal.

…

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Currently, legislation provides for certain rights. Parliament would have to be involved legislatively to deal with those. A great repeal bill is enacted. Parliament will then, again, necessarily, and inevitably, be involved in any further alteration to the newly domesticated rights.

…

THE LORD CHIEF JUSTICE: Are you in effect saying, that bill will deal with what we shorthand described as category one rights. [See Day 2 “taxonomy”] Those are ones that are within the control of Parliament. You know, domestically, for example, if someone decided they wanted to make part of UK law something like — a Working Time Directive is   a very good example. Because that really applies  domestically. That would be a category one right.

MR EADIE: Yes. It will deal with a bit of category one in  part and category two in part. I don’t want to get too   sucked into the categories. It doesn’t need to deal   with those EU law sourced rights, if I can put them that  way, that are currently and already implemented into domestic law through either primary or secondary legislation, because you need legislation for those anyway. What will be domesticated is the remaining sets of rights, as it were, that might be directly applicable from Europe — my Lord is right about the Working Time Directive.

…

THE LORD CHIEF JUSTICE: No, but trying to understand the argument in its entirety, the deprivation of what one would call the voting, by way of illustration, [ie right to vote in EU Parliament election] category three voting, category two freedom of movement, those would be rights that would, if the agreement under Article 50 is subject to ratification, subject to the point you made on that, Parliament would have the control by saying: well, we don’t like it, we are not ratifying what the government has agreed. Therefore the agreement under Article 50 couldn’t be made without Parliamentary approval.

MR EADIE: I think once that agreement goes in, that would prompt the question, I suppose, of whether, in relation to rights or obligations which were not expressly covered in the agreement, whether the ratification process would cover those.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: Whether those would simply be necessary incidents of leaving the club. It would raise that question.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: But frankly, once it is before Parliament, the

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legal and practical reality is a yes to my Lord’s question.

THE LORD CHIEF JUSTICE: Okay.

[Some discussion followed on how later legislation (Crag/ European Union Act 2011 on amending or replacing the TEU or TFEU) affects interpretation of the 1972 European Communities Act (see JB Jamaica). Eadie turned to the European Union Act 2011, providing for a referendum if the Treaty of the European Union were to be changed or the Treaty on the Functioning of the European Union]

…

THE LORD CHIEF JUSTICE: I think, as we agreed, Article 50 envisages an agreement between the United Kingdom and the European Union.

MR EADIE: Acting in a certain way through the [European] Council with qualified majority and European Parliamentary approval.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: The question ultimately is whether or not the treaty — whether that would be a treaty which, quote, ‘amends or replaces [EU treaties] TEU or TFEU’, section 2(1) of the 2011 Act.

THE LORD CHIEF JUSTICE: Mm-hm.

MR EADIE: Of course, if it did, there might be all sorts of other inconveniences and difficulties potentially, but it would provide, as it were, a silver bullet on behalf of government, because we would then say: well, there is    the Act of Parliament, what are you worrying about? But

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we respectfully submit that that is not the correct reading of section 2(1). That agreement would not be an agreement amending or replacing the TFEU on the proper interpretation of that piece of legislation.

LORD JUSTICE SALES: Why wouldn’t it replace the TEU or the TFEU?

MR EADIE: Because this piece of information [legislation, presumably], we respectfully submit, establishes a regime for dealing with treaty changes, and other EU level decisions, and notifications which are of concern to the UK in general, and to Parliament in particular as a result of UK membership of the EU. That is what we say this is designed to do [ie make changes while a member of the EU]. One can see a literal argument that says, well, it would drop away or it would replace, I am not sure it would necessarily replace, because it would be a wholly different agreement which wouldn’t operate in the same way at all.

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But this issue is an issue of the correct interpretation of a piece of domestic legislation … [I]t [the new treaty post-Brexit] represents a different species of  agreement, in my submission. This is premised, this piece of legislation [2011 Act], on the assumption that we continue to be members, and the TEU and the TFEU are agreements on the international plane which govern the relationship, as it were, inter se, of those member states who are all members of the club, if I can put it that way. What we are dealing with is a fundamentally different beast which is a new relationship between the EU, as it were, on the outside and us on the outside. It is as though the EU were entering into an agreement with America or Colombia. It isn’t what this piece legislation is designed to do. The purpose of this piece of legislation was to say: before you do anything which amends or replaces in relevant respects the existing relationship whilst we continue to be members of the club, you have to come back to Parliament, because we are worried about further encroachments on

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Parliamentary sovereignty and everything else. That is why you have the referendum conditions [in the 2011 Act ie for changes to EU treaties. Eadie’s argument is that the 2011 Act required parliamentary input into changes in EU treaties (and a referendum) but the Act does not apply to exiting from the EU altogether].

… [I] query whether the TEU and the TFEU would be replaced [and thus be covered by the 2011 Act]. They would presumably stay in the same form and this [agreement pursuant to the Article 50 notice] would just be a new agreement alongside [hence not covered by the procedure of the 2011 Act].

LORD CHIEF JUSTICE You obtain an Article 50(2) agreement and you say that, I assume, is not an agreement which is amending or replacing the TFEU.

MR EADIE: It is a different beast.

THE LORD CHIEF JUSTICE: The consequence of that is the treaties then cease to apply, because that is what Article 50(3) says. MR EADIE: Yes. They are not amending or replacing. They are not introducing, as it were, new rules for the club.

…

[T]he 2011 Act doesn’t deal at all with that initial stage in the process and they wouldn’t on any view fall within these provisions.

LORD CHIEF JUSTICE: Yes.

EADIE: … As my Lord has rightly pointed out, the 2011 Act doesn’t deal at all with that initial stage in the process and they wouldn’t on any view fall within these provisions.

LORD CHIEF JUSTICE: Yes.

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But even if they would, this is dealing with a later point in time and assumes the making of a treaty. This is nothing to do with taking the step that starts the negotiating process.

…

LORD CHIEF JUSTICE: I think the effect of your — just to follow this through — argument is that if the government makes an agreement, if the executive makes an agreement using ordinary prerogative powers, that agreement will be subject to the 2010 Act and Parliament can say yea or nay to it, subject to the point on ratification. Therefore the only oddity about the bit where there isn’t control is —

MR EADIE: If no agreement.

THE LORD CHIEF JUSTICE: — the two-year point.

MR EADIE: And assuming no agreement.

THE LORD CHIEF JUSTICE: Yes, it is the two-year point.

MR EADIE: Exactly. In relation to that, you have all my submissions about Parliamentary intervention, the legislative rights they would have to deal with, the great repeal bill, the reality and so on.

LORD CHIEF JUSTICE: But the fundamental answer is that actually at the end of the day, if there is to be a negotiated agreement, subject to ratification, it would be up to Parliament to say yes or no.

MR EADIE: Yes, I have used the words I have used deliberately, in terms of likelihood, but for the reason

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I have explained. I don’t want to keep coming back to that point.

THE LORD CHIEF JUSTICE: But the likelihood only depends on the question of ratification.

MR EADIE: Yes. The court may or may not have appreciated

this; there is an exceptional circumstances thing which I probably should draw your attention to.

THE LORD CHIEF JUSTICE: Yes.

MR EADIE: In CRAG, just so you have the complete picture, which is again another reason for saying likely. I don’t think anyone is envisaging that that either would or could be operated other than in circumstances which are genuinely and truly exceptional.

…

Lord JUSTICE SALES: Yes. So there is a sort of opt out for the executive –

MR EADIE: If there are exceptional circumstances.

LORD JUSTICE SALES: — from the ratification.

MR EADIE: No doubt subject to both legal and Parliamentary control. No one is envisaging that outcome at the moment

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Submissions of Mr Jason Coppel QC

(Dealing with the interveners’ points)

We submit that the interveners have seriously overstated the effect of the decision to withdraw from the EU and the notification of that decision on the rights which are conferred on individuals by UK domestic law… It is said there would be a very serious impact on citizenship rights, and that that very serious impact means that by necessary implication, the prerogative has been excluded. The proposition that I want to put to you first of all is that UK citizens have very few rights as EU citizens which are enjoyed as a result of the 1972 Act. Of those rights, none are directly affected by notification and as a matter of law, all could be preserved upon withdrawal, should Parliament so choose.

[He described significant rights in effect as bi-lateral – as if, for example, one had such rights thanks to a Treaty with France. For example, free movement:]

[I]n relation to the right to go and live in France, the obligation of the UK government, and therefore the rights conferred by the European Communities Act, those rights are limited. They are a right against the government not to stop you from leaving the country, or not to deter you from leaving the country, by fining you, for example, and to allow to come back to France once you have had enough of good life. But that right, those rights, are currently provided under domestic law. They fall in to the category if nothing were changed they would continue and on view, they are rights which Parliament could continue, or could ensure will continue after withdrawal. But the substantial part of the right to reside in

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France, is a right which France confers, pursuant in particular to EU law, as a result of the international obligations which the Crown has entered into on behalf of the UK in the EU treaties.

LORD JUSTICE SALES: But in a certain sense, that is a product of the European Communities Act because we have been told that the European Communities Act and subsequent primary legislation was necessary in order for the United Kingdom to ratify those treaties, and therefore to secure the benefit of those treaties for its citizens.

MR COPPEL: Well, no. My Lord, what was — necessary as far as domestic law was concerned, yes, certainly was to ratify the treaties, and because of the 1978 Act and subsequent statutes, Parliamentary approval was necessary for that. But the right to live in France was not a right which was ever conferred by the European Communities Act itself, because that confers rights to be used and given effect in the UK. That is what it says. So should a UK citizen be expelled from France unjustifiably, his right is under French immigration law. He goes to the French court, he doesn’t rely on the European Communities Act, he goes to the French

Page courts and he relies on their equivalent of the European Communities Act and their immigration law, and says: because of your international obligations you are not allowed to do this; but this is not as a result of the European Communities Act.

[So, Coppel’s argument goes, the right of free movement is in effect a treaty right, not a right as a result of the ECA 1972 – which is an act that ensures EU law is passed into UK law and recognised in UK courts. If France barred free movement to a British person, that person would go through the French courts and ultimately to the EU Court of Justice in Luxembourg; UK courts would be out of the picture, having no sway in France. As Coppel says: “What business would Parliament have, enacting in domestic legislation the obligations of a foreign state?” The same could be said of British businesses’ rights to export to France free of tariffs.]

…

COPPEL: [T]he rights which are conferred by the European Communities Act, as far as going to live in France is concerned, let’s stay with that example, those rights are the right to leave the country and to be allowed back in. Not the right to live in France. That is what I say.

LORD CHIEF JUSTICE: But he gets the right to live in

France through citizenship of the European Union.

MR COPPEL: Well, my Lord, yes, that is the ultimate origin of it; that is the international treaty provisions, which give him, ultimately, that right. But when he goes to the French courts to complain about being unjustifiably expelled from France, his rights are under French law implementing citizenship rights.

[Coppel goes through various rights in this way. Eg Article 22 TFEU, right to vote in local elections in other countries, would be lost:]

MR COPPEL: But that is not the removal of a right which is conferred by [UK] domestic law. If Romania prevents a British citizen from voting in Romanian local elections, their cause of action is not under the

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European Communities Act, it is under Romanian law, which Romania has implemented as a result of its international obligations under the treaties. [Similarly Art 23, consular protection; Art 24 to petition the European Parliament; right to approach the Court of Justice for a preliminary reference, right to healthcare.] … The right to seek employment, work, 19         exercise the right of establishment or provide services in any member state; the same point arises. You have a right against the UK to not stop you from leaving, or not to discourage you from service provisions in the other states, but the substance of the rights is a right enforceable against other states under their legislation in due course.

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… So if the UK citizen goes to France, Spain, wherever, they have a right to be treated equally within the material scope of the treaty. But again, that is a right not used, or given effect, in the UK. It is in other member states under their law against them.

JUSTICE SALES: But presumably if there was a French person in the UK, they would have rights under our law here.

MR COPPEL: Yes, yes… As far as the French citizen is concerned in the UK, they the moment rights under UK domestic legislation Equality Act not to be discriminated against on of nationality [ie because EU law has been enacted as a UK parliamentary statute – and would remain in UK law until repealed under the “Great Repeal Act” provisions, presumably by statutory instrument. He turned to the EU’s Charter of Fundamental Rights.]

MR COPPEL: Some of these rights [in the Charter] are only enjoyable against other member states, some are the same as the Convention on Human Rights which we already have,

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some are implemented under UK legislation. There isn’t really anything different in the analysis. Mr Gill relied in particular on the rights of Zambrano carers, the carers of UK citizen children to remain in this country so as to avoid their children having to leave the EU. That is a right which, as he mentioned, is conferred by the 2006 regulations that he handed up to you and the particular provision, just for your note, is regulation 15A(4)(a). But again, this is within the category of a right which has been implemented in to UK law. It is in domestic legislation. In itself, as a matter of law, notifying and then leaving the EU has no effect on that legislation.

So what this all comes down to is in the three categories, and I hope I haven’t lost track of the typology, the category one rights are those which are either already in domestic law and will continue to be as a matter of law, no change due to notification; or can be transposed into domestic legislation. I think1 this category particularly includes directly applicable regulations to which the Master of the Rolls referred yesterday. Those need not currently be implemented in domestic legislation but they could be. That is the great repeal bill that Mr Eadie was discussing. Then you have the category two rights not within the gift of Parliament, but as I have said, that indicates that they were never actually conferred by Parliament in the first place. It could not do so and it did not do so.
LORD JUSTICE SALES: Just so we are clear, the category two rights are the rights, for instance, of the UK citizen in France that you have been referring to.
MR COPPEL: Yes, as I understand the categorisation.
THE LORD CHIEF JUSTICE: How did the British citizen acquire
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the right of free movement?
COPPEL: Well, that is as a result of the international obligations which the UK has entered into with the other member states of the EU at a high level. What does the right of free movement mean, one has to ask what that9 means.
THE LORD CHIEF JUSTICE: No, no —
MR COPPEL: On the ground, when you move to France, Spain or whichever country, the UK citizen has a right of free movement either as a result of their domestic legislation, or if they haven’t got domestic legislation, he can rely directly upon the treaty against that country.
THE LORD CHIEF JUSTICE: And his right to Union citizenship, similarly, comes from the treaty?
MR COPPEL: Yes, his status as an EU citizen with the rights which come with that, comes from the treaty.
…
R COPPEL: Then you have your category three rights, which are the rights to belong to and use the institutions of the club while you are a member of the club. Now, you have heard submissions about that. It is a small category, in my submission. In terms of a right which is conferred by domestic law, there are the rights to vote and stand in European Parliament elections, not1 conferred by the 1972 Act but by later legislation.
…
THE MASTER OF THE ROLLS: Well, category three in a sense covers all of those where not given effect in primary legislation either here or in any of those countries.
MR COPPEL: As I understood the categorisation, those rights that are not within the gift of Parliament, rights, were in category two.
THE MASTER OF THE ROLLS: I see.
MR COPPEL: The position is that much depends upon the content and outcome of the negotiations.
THE MASTER OF THE ROLLS: Yes.
MR COPPEL: Certainly they aren’t within the gift of Parliament.
THE MASTER OF THE ROLLS: What you could say is — I think
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you are addressing here that narrower point about what rights have actually been granted by the 1973 Act, which affect here, the words used here. But there is this wider category of rights enjoyed by British citizens in all of the other member states. What I am saying is those are not within the gift of the UK government.
MR COPPEL: That’s right.
THE MASTER OF THE ROLLS: That applies to all of these rights which they derive from, as EU citizens.
MR COPPEL: Yes. So those rights were not conferred by1 domestic law to start with, so never within the gift of the UK government. They won’t be within the gift of the government in the future, but, depending on the content and outcome of the negotiations, they may be enshrined in domestic law. But my Lord, the critical point is that the argument against us is all about impact on rights conferred by domestic law. Now, the point of my submission, which I will finish in a moment, which I have been making, is that the category of domestic law rights which will inevitably be affected by notification is very small, and really is principally within that category of rights to use the institutions of the club, which you have heard about from Mr Eadie. That does impact, we say, upon what implications should be drawn from the
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statutory scheme.
…
The great majority of the rights which Ms Mountfield, on which she rests her case, were never conferred by Parliament in the first place and so certainly haven’t been dispensed with. Those which have been conferred by Parliament, or by subordinate legislation, as a matter of law will remain notwithstanding notification and even withdrawal. Parliament will be consulted, as you have heard, and will have control over the corpus of domestic law as it stands after the withdrawal.

Devolution

Addressing the claimants on:

1) “leaving the EU would remove one aspect of the scheme of vires of the devolved governments set out in the devolution legislation. They all have to comply with EU law” (Mountfield Day 1);

COPPEL: “[Q]uite simply, is that the submission on the other side is on the 1972 Act is what it is; it doesn’t get any better when one looks at different manifestations of the 1972 Act in different legislation. The same arguments apply, we say, it assumes and doesn’t require membership.”

2) Re Article 18 of the Union with Scotland Act (Articles of Union pdf – trade laws to be the same in Scotland and England) COPPEL: “[T]here is nothing to suggest that the basic constitutional background is any different in Scotland than England, and the same issue arises whether Parliament has left in the hands of the Crown the prerogative power to decide to withdraw. There are a number of other reasons why Article 18 doesn’t help; non-justiciability, no impact on private law, there is a whole range of them; but really it suffices for my purposes to say that it just doesn’t change the argument”.]

Lord Pannick then made reply submissions

See pre-case discussion of some of these matters on Al’s Law/Brexit.

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
The Ponsonby Rule
The European Union Act 2011

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