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.
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.