Transcripts (perhaps draft) of the Article 50 ‘Brexit’ Appeal hearings at the Supreme Court

  • My Lords, my Lady, can I indicate where my submissions are going to go and give you an overview, if I may.

  • I am going to start with three brief submissions on the nature of the prerogative.

    Then I am going to deal with some basic principles relating to dualism and the impact of the prerogative on to domestic legal rights and obligations.

    Then I am going to take you briefly, because I know you will be well familiar with them, through some of the cases dealing with the De Keyser principles.

    Then I am going to have a slightly longer section, trying to apply both of those basic sets of principle to the concepts that you have before you today, before turning finally to two topics, one of which the Attorney has already flagged, namely parliamentary sovereignty, and secondly asking the direct question which the divisional court treated as being in effect dispositive, namely is there a background constitutional principle of the kind that they described.

    That is the structure, and, even in describing it, it appears that my submissions to you are going to be longer than they ordinarily would be, but the complex issues in this case perhaps lead to that. But I will bear clearly in mind what I have been told, which is that in order to maintain the broader interest, if there is any in the issues in this appeal, these submissions have to be marginally more entertaining than the one that Serenade the Stars is about to make in the 11.50 Maiden Stakes at Lingfield Park.

    I am not optimistic on that front, but with that lead in, could I turn first to the prerogative. Three basic points if I may. They are general in nature but they are, I would respectfully submit, important to emphasise at the outset of this appeal.

    Firstly, the point that the Attorney has already flagged, that the prerogative powers are, we submit, an essential and fundamental component or pillar of the modern British constitution. One only has to list the paradigm examples that the courts have given of prerogative powers to appreciate that constitutional fact. War and peace, the conduct of international relations, including the powers to make and unmake treaties.

    Those are powers that are exercised today and that have, for years, been exercised by the Government. It probably matters not whether that is a good thing or a bad thing. It is, we submit, a basic constitutional fact. If one had to justify that, it is not difficult, particularly in the sphere of foreign affairs, to see why, under our constitution, such powers continue to be exercised by the Government, subject, of course, to the limited and specific control that the legislature has seen fit to impose upon that exercise.

    The conduct of foreign affairs involves myriad decisions, a daily exercise of power, a series of judgment calls, the negotiations between sovereign states on the international plane leading to the conclusion, and indeed to the withdrawal from agreements that are so made. It was, we respectfully submit, properly described by Viscount Radcliffe in the Burmah Oil case, core authorities bundle 3, tab 34, MS 1356 at page 118 as "a power to act according to discretion for the public good".

    There has been a recent article exploring the question in justificatory terms, good thing or bad thing, the prerogative, by the professor of legal philosophy at Balliol, Oxford, Professor Endicott, and you have that lecture which we recommend as at least interesting reading behind tab 11 of the little blue file, for which apologies, but the little blue or black file on your desk with 11 KBW written on the back.

  • That is it. Tab 11 is Professor Endicott if you want. I am not going to take you through it now but there it is.

  • He relies upon, amongst other things, the very section from Blackstone's Commentaries that the Attorney has just taken you to.

  • I say an essential and fundamental component or pillar under our constitution, but we are, as the Attorney has already flagged, not alone in having that system, in having the system that we do. Other common law jurisdictions have exactly or precisely similar systems relating to treaty-making, ratification, and withdrawal.

    Specifically and for example treaty withdrawal, to focus on that for a moment, is a decision taken by the executive alone in Australia, in Canada, and we cite the Turp case, I am not going to take you to it, authorities 26, tab 308, 8950 in the electronic -- and New Zealand. And the same position exists in --

  • Can I ask, the Turp case does interest me, are you going to come back to that at some point? That is an unusual example of the prerogative being used in fact to go against a specific act of Parliament on one view of the matter. I don't know whether you are going to come back to it.

  • My Lord, I can come back to it.

  • Very well. I was saying that the same position exists in relation to the United States where treaty ratification is subject to two-thirds majority Senate approval; that is ratification; but the power to withdraw vests exclusively in the executive. You have got in the bundle, and it is perhaps worth turning this up very briefly -- I will try and keep the authorities I take you to to an absolute minimum, given the time, but this is perhaps of some interest. Authorities bundle 27 tab 27, tab 332, and it is 9367 on the electronic.

  • The passage that it may be worth just inviting you to side line is the passage that you see on page 9367 in the left-hand column, halfway down beginning:

    "Termination of a treaty ..."

  • Again, with my Lords' permission, could I invite you to read that, just that paragraph.

  • Ending "section 332"?

  • Ending "section 332".

  • Thank you. We will read that.

  • (Pause)

    Thank you.

  • This first statement of basic principle, we submit is enhanced and supported and not diminished by the fact that the powers themselves are ancient.

  • Could you just tell us what it is that you have directed us to? You gave us a tab reference and you didn't actually tell us what it was.

  • Sorry, that is the third restatement.

  • The third restatement.

  • I am so sorry, I should have introduced it.

  • It is indeed the case that the prerogative powers in question are ancient. What that implies, we submit, is that a long-standing, well-recognised set of powers can properly be recognised as both firmly established in our constitutional arrangements, and as having real and continuing value in contributing to effective government.

    Describing a particular prerogative power as a relic of a past age, a phrase which I know my Lords and my Lady will be familiar with, needs to be approached with some little caution. That was the statement or one of the statements by Lord Reid in Burmah Oil, and which the divisional court chose as their descriptive quotation, if I can put it that way, in paragraph 24 of their judgment.

    The statement, if one goes back to Lord Reid in Burmah Oil, was in fact made in order to justify the correct analytical approach in that case to the nature of the war prerogative, namely, as Lord Reid described it, a historical one designed to see, in effect, if the Government had ever taken property in time of conflict without compensation. So it was a statement for a purpose, implying no suspicion of the underlying doctrine by reference to its age.

    If describing it as a relic of a past age implies a long history, we agree. If it implies as a general proposition that more today is done by statute and there is less reliance than in Stuart times on the Government's prerogative, again, we agree, but to the extent that the description has connotations of anachronism because the power has existed for many centuries, we profoundly disagree.

    The correct starting point, we submit, is not suspicion of prerogative powers accompanied by judicial concern at their exercise; it is quite the opposite. It is the recognition that the prerogative powers that remain in the hands of Government are fundamental to our constitution, and effective government -- are essential to effective government.

    That properly leads to the exacting tests that I will come to, that the courts have developed before a conclusion can be reached, either that the powers have been taken away or limited by Parliament, and I will come back to De Keyser obviously and the rigour of that test; my submission is going to be that the rigour that that imposes is sound. Or that the power should be subjected to a broad general limitation in principle imposed by the courts. That is the first submission, therefore, fundamental.

    The second submission is that prerogative powers are by definition those powers that can be exercised by the Government without statutory authority. They do not depend for their existence or their source on legislation. Otherwise, they would be, and become, statutory powers. So statutory intervention into a sphere in which prerogative powers are exercised involves a legislative decision to impose limits or to abrogate or to remove existing, properly sourced elsewhere, prerogative powers.

    If a limitation on prerogative power is asserted, such as the interposition of some form of requirement of parliamentary involvement in decision-making in the sphere of a prerogative, decisions will necessarily therefore be necessary as to the precise nature and effect of any such limitation.

    CRAG, the Constitutional Reform and Governance Act is an example of this. Preceding CRAG, and I will come back to it as you will recall, there was much debate about the precise extent and nature of the parliamentary controls that should be imposed on the exercise of the prerogative, and detailed provisions, a detailed position was arrived at.

    So these two are factors we respectfully suggest that indicate that clarity of parliamentary intention is necessarily to be looked for if the assertion is made that the prerogative has been controlled a fortiori abrogated.

    The third submission in relation to the prerogative is this. Parliament is of course sovereign. It can choose to limit, it can choose to control the prerogative power in any way or ways that it sees fit, and, of course, ultimately, it can choose to remove such power in any particular context altogether. So it is accurate and more accurate, certainly, in the context of foreign affairs, than using "relic" language, to describe the prerogative, again Lord Reid in Burmah Oil as "part of sovereignty which Parliament has chosen to leave in the Government's hands".

    That is 1338 in the MS numbering, core authorities 3, tab 34.

  • In the context of foreign affairs and treaty-making, there has been specific recognition of that fact, ie that that sort of prerogative power is left in the hands of the Government by Parliament, in the Bill of Rights itself, as noted by the court in the McWhirter case. Again, I don't invite you to take it up but that was a case in which there was an unsuccessful challenge made to the Government's signature of the Treaty of Rome and the relevant reference for your note is core authorities 3, tab 46, MS 1849, at paragraphs 6 and 8.

    Again, what this indicates and emphasises is that the continued existence and exercise of prerogative powers, such as in the conduct of international relations, is constitutionally sound and not suspect and is in nature subject to parliamentary control when Parliament chooses to do so.

    But the premise or the basic constitutional default position is the continued existence of these fundamental powers, and that renders it just as important in the context of an argument about limitations on prerogative power to examine and take into account what Parliament has not done. Legislative intervention is necessary, we submit, to limit or remove. It is not necessary to leave the prerogative power in place, to be exercised in the usual way without further parliamentary authorisation.

    So those are the submissions we make, the basic submissions we make about the nature of the royal prerogative.

    Can I turn to the second of the topics, which was basic principles relating to dualism and the impact of the prerogative on domestic legal rights and obligations.

  • Can I just interrupt again. Will you be coming back to the extent to which the prerogative is reviewable by the courts? Because I think this is an area which is touched on in some of the submissions, whereas I mean some years ago, it would have been assumed it was not justiciable at all, whereas more recently, in cases like Abbasi and Sandiford, we have accepted the power to review and it is something we might like to look at a little later.

  • My Lord, we have. I was not proposing to devote a lot of time to that. You will have seen below there was a flirtation, if I can put it that way, with the non-justiciability argument, and that is no longer being mounted before this court. We accept that the prerogative power, including the prerogative power to exercise foreign relations, may raise non-justiciability issues, but in a context such as this which raises the fundamental and basic legal question, namely whether the prerogative exists or has been abrograted, it is appropriate for the court to rule on that issue --

  • Why it may come in, and we can see how this goes, when one is asking what difference does the referendum make, then arguably, if the Government said we are going to get out of Europe without any parliamentary mandate at all, or indeed in the face of an adverse referendum, that might well be said to be an abuse of power which is reviewable on that basis by the courts; whereas alternatively, when it is doing, as they say, something which has actually been anticipated by Parliament, then it is not an abuse of power. It seems to me that distinction might be worth investigating.

  • Yes, and that is a point I am going to come back to when I consider the 2015 Act, but the basic proposition that we accept is that exercise of prerogative power, subject of course to the non-justiciability limitations that continue to exist, the subject matter is open but only to some extent. The courts have been very, very wary obviously, a series of cases, Lord Carlisle springs immediately to mind, they have been wary about second-guessing policy judgments made by the Government; but matters of the kind that my Lord raises particularly in the context of the 2015 Act, we respectfully submit that if it has a chime, it is probably there, so that if the Government acted in a way that could properly be described as abusive, at least arguably, that would be a matter competent at least for the courts to consider.

    Basic principles in relation to dualism. Obviously I am going to have to come back and develop some of these themes as I go when we go into the statutory scheme, which is going to occupy a little bit of time later, but I wanted to set the scene first by taking you to some basic constitutional principles on dualism, and then some basic principles on De Keyser, and see how those two marry up, and then go to the statutory scheme and show you how that flows. If that is a convenient course, that seems the logical way of doing it.

    So five, short basic points around dualism and the impact of the prerogative on domestic legal rights and obligations, if I may.

    Firstly, we submit that prerogative powers may be exercised to create international legal effects on the international plane.

    When the Government makes a treaty, it binds the United Kingdom, it acts on behalf of the United Kingdom and it binds the United Kingdom to that agreement on that plane. It does so by exercising prerogative powers, as the famous, the now famous quote from Lord Oliver which I will come back to in the JH Rayner case, core authorities 3, tab 43, 1779 in the electronic numbering is the key page, or 1778 to 1779, now engraved on all of our minds, we have set out the relevant quote in our case at paragraph 41, but as that quote acknowledges --

  • Forgive me, Mr Eadie, I am back at references. Is it 343 or is it 543?

  • It is core authorities 3. Do you have a set of files called CA?

  • On the electronic bundle.

  • On the electronic bundle, it is 1697.

  • I think it is bundle 3, tab 5.

  • There is a distinction between core authorities and all the authorities.

  • I am sorry, it is just confusing.

  • It is. It is in many places, I am afraid. I think in the core volumes, at least they have maintained consistently the MS numbering. If you take up the hard copy for the moment.

  • The tab numbers are the same.

  • The tab numbers are the same, which is why it jumps. If you go to core volume 3 in the hard copy. I should have started with the bewildering nature of the bundles.

  • I don't think we have all caught up with the core authorities.

  • They are quite useful because they are a proper dragging out from a set of other bundles.

  • That is very kind of you, Mr Eadie. I just wanted to reassure myself that I was not looking at the wrong thing. Volume numbers were different but of course it is a very sensible thing to have done, especially for those who are not using the electronic bundles.

  • It means you do not have to lug five boxes around, which I have been doing for most of the weekend. Core authorities 3 in the hard volume, if you will. Just to show you how it works, I will do it once and we can pass on, as it were.

    Tab 43, and you will see in the hard copy it jumps from tab 34 to tab 43. That, however confusing, is deliberate.

  • That is page 1778 that we look at.

  • 1778, but it is the same if you go into volume 5, et cetera, et cetera, et cetera, it is exactly the same.

  • Thank you for the explanation. That is very helpful. Now we know where we are, we can carry on.

  • 1778 to 1779, my Lady.

    Creating effects on the international legal plane is really the first point, and that is acknowledged by Lord Oliver in the famous quote.

  • The royal prerogative embraces the making of treaties, and of course the royal prerogative also means that the Government can withdraw from treaties in accordance with their terms or with general principles of international law in the same way. As Lord Templeman put it also in the Tin Council or the JH Rayner case, this time at 1755 -- I don't invite you to turn it up, for your note it is there. He said:

    "The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty."

    That is the first proposition, effects on the international plane.

    The second that the United Kingdom system is a dualist system. That means that there is a distinction between the ability to create legal rights and obligations on the international plane and the transposition of those rights and obligations into domestic law. Treaties are not in the trite phrase, self-executing. They do not automatically become part of UK domestic law when made.

    So the Government cannot, without parliamentary intervention, to take that phraseology also from Lord Oliver, alter domestic law by taking steps on the international plane to make treaties. They require instead the intervention of Parliament in order for domestic law to be altered.

    That position was, we submit, accurately stated, unsurprisingly, by Lord Hope in the Privy Council in the Roberts case which you have in the little black file with 11 KBW written on the back of it, which doesn't have MS numbers, I am afraid, but it is the Roberts case in the Privy Council, and I know my Lady was also a member of that court. Supplemental tab 9.

    The facts do not terribly matter, but it was in an extradition context in an appeal from the Bahamas, and some people were wanted for suspected drug trafficking by the United States, who made a request for their extradition to the United States from the Bahamas, but the relevant paragraphs for our purposes are paragraph 9 on page 4, page numbering on the top in the middle, just to see the shape of the argument. You see halfway down paragraph 9 it says:

    "We also submitted that as legislation was necessary to enable effect to be given to a treaty in domestic law, Parliament had to pass an enabling statute before it was ratified."

    The "it" there being the international agreement between the Bahamas and the United States regulating extradition.

    That then leads into the statements of general principle which you see recorded by the Privy Council at paragraphs 12 and 13.

  • Could I just ask you to cast an eye over those, rather than my reading them out.

  • (Pause)

    Yes, thank you.

  • The third proposition is that consistently with dualism, legislation then creates by whatever means a conduit between international and domestic law, if the international agreement is to sound in domestic law, but the fact that Parliament needs to do that consistently with dualism and has chosen to do that consistently with dualism, tells one nothing beyond that a conduit is required. It does not imply that Parliament, by creating the necessary conduit and recognising thereby new legal rights and obligations in domestic law, has also intended to constrain future Government action on the international plane.

    Lord Oliver did not state or come close to suggesting otherwise and there are of course, as you will be aware, various ways in which Parliament may choose to transpose from the international to the domestic planes.

    We give examples in our case, if I just turn that up so I can take this tolerably quickly, at paragraph 43, core volume 2, the first tab, and in the electronic it is page 12342 -- I don't dare say thousands.

    12342.

  • I am sure you are right.

  • We will test the system to destruction by the end of this case.

  • You are right, Mr Eadie.

  • Good. At least that is something.

  • I wondered how long it would be before it came.

    Paragraph 43 is the one I am after.

  • It gives the examples, including -- so the examples of transposition, how that could be done, the various ways, you could make legislation with no reference to the treaty rights and obligations that are being transposed; the Criminal Justice Act of 1988 about compensation for miscarriages of justice is an example of that, no reference to the treaty at all. You can give effect, but effect in the legislation's own words, indicating as you do that you are giving effect to the international agreement or instrument; EU directives are perhaps a paradigm example of that; or, HRA, one can simply schedule the treaty rights in their own terms and then say they are to have effect in domestic law.

    So there are a variety of different ways in which it can be done. All of those models create domestic legal rights by transposition and none of them, we respectfully submit, does anything to constrain. There is no implication in any of those that in some way, shape or form, Parliament, by having chosen those models or any particular model, has sought to constrain or has impliedly constrained Government action on the international plane thereafter.

  • Is each model a statutory model?

  • Each model is necessarily a statutory model.

  • Does any of your three examples cater for a situation where the continued operation of the domestic legal provisions is affected by whether or not the international position remains the same?

  • My Lord, none of those three does, and of course I am going to come to that because that is the basic 1972 model, so I am going to come to that, but the point that I am on at the moment is the prior point, as it were, which is that there are various ways in which this can be done; and the question is whether in relation to these other models which do not directly create that sort of situation, whether in relation to any of these other models, there is some form of implication, that by having introduced the conduit, there is an implication that Parliament thereby intended that you could not do anything on the international plane thereafter. Of course they do not have a direct impact, and I will come to that, but we do respectfully submit that it is at least of some interest to recognise that if another set of models is used, no implication, as it were, of continuation of said rights would flow.

  • No implication of continuation ...

  • Of the rights thereby transposed. They would simply exist on the domestic plane because Parliament has legislated, and the Government could do whatever it wished on the international plane, but it would not obviously sound into the domestic scheme. So, for example, if one takes a directive, a directive imposes an obligation of result as a matter of international law, the usual way of doing that is to introduce domestic regulations; and the domestic regulations would continue to sit irrespective of whether or not the directive formally finishes, begins, is amended or ends. It would require some other act.

    They are of course different from the situation that we are dealing with, but we respectfully submit that it is at least of some interest, that is the position in relation to those sorts of models, and that there is not any necessary implication to be derived from the mere fact that a conduit is necessary, consistently with dualism, and has been created by Parliament.

    Of course, I emphasise, to flag submissions that are yet to come, that this sort of implication or inference from what Parliament has done is not, we will be submitting, at large. There are a set of principles that have been developed by the courts to govern the nature of any such inference or implication.

    My submission is going to be on De Keyser that before you conclude that a prerogative power has been taken away, that needs to be done by Parliament either expressly or by necessary implication. So it is not just an inference which is at large, and that feeds into the other point to bear in mind which I will come back to, which is that if Parliament wants to go to the point of preventing the creation of legal effects on the international plane, it does so specifically. Look at CRAG, look at the bespoke controls under EU law and so on which I will come back to.

    That is the third of the submissions, the third of five, as it were, on the basic position on dualism.

  • The fourth is that the dualist principle is not that prerogative acts on the international plane can never create effects in domestic law, including the removal of rights and the imposition of fresh obligations, as a result of action on the international plane by the Government. It is plain that in a variety of more or less direct ways, such acts can have an impact into domestic law.

    Again, I will come back to it, but we give a series of examples of that sort of situation, those sorts of effects, including citing Post Office v Estuary Radio, which I will come back to in paragraph 40 of our case.

    So there are a variety of more or less direct ways, or indirect ways, that action by the Government can affect domestic legal rights. Again, just to jump ahead, Post Office v Radio, I am sure you will have seen or you will recall, involves someone broadcasting a radio station from some territorial waters, the Government effectively defined where the territorial waters begin and end, and those territorial waters were then extended by prerogative act, the consequence of which under the relevant legislation was to render criminal the continued publication of said radio station from where the boat was located, but -- so more or less indirect ways, the prerogative can have those effects.

  • That is just another example of your pro tem argument; the rights under the statute or the obligations are whatever -- or relate to whatever the scope of the territorial waters is from time to time.

  • It is an example of that, and it is a -- whether one puts it directly alongside or as a slightly more indirect version of the next way in which Parliament can do that, which is parliamentary intervention, the point my Lord, Lord Mance was raising with me earlier on, parliamentary intervention can be done so as to make express provision, the effect of which in domestic law is without more to give domestic legal force to the exercise of prerogative powers, and I will of course come back to the 1972 Act and other similar models, but that is one of various models of transposition.

    The effect of that sort of model, perhaps the fourth, I gave you three before, this is the fourth, in other words direct legislative impact and effect to actions by Government on the international plane, but it gives domestic legal effect to what may be described as an ambulatory system, created on the international legal plane; the body of rights and obligations, the entire legal structure or set of structures on the international plane, may change from time to time; and the domestic legislation on this model makes provision for a transposition into domestic law that is characterised by the fact that it is both automatic, no further parliamentary intervention required, and direct, in terms of impact on or alteration of the scheme's rights and obligations.

  • This is your paragraph 44, is it?

  • My Lord, this is our paragraph 44, exactly so.

    The key points we respectfully submit about this model are that Parliament thereby creates a system under which rights and obligations alter and shift. A right, to focus on that, rather than an obligation, for a moment, may be amended or changed by prerogative action. It may be removed altogether by prerogative action, but all of that is done by the exercise of prerogative powers without further parliamentary intervention.

  • Is it a question of the true construction of the legislative provision, the relevant legislative provision? It is?

  • It is a question of construction of that, it is. But it is of the very essence of this model, if this is the model that you are dealing with, that Government can, under our constitution, entirely lawfully take steps without further parliamentary authorisation, derived, of course, from the initial intention being, as my Lord has correctly pointed out, that that being the intention of Parliament, but the Government can entirely lawfully take steps without further parliamentary authorisation, which directly alter domestic law, including by removing rights. The possibility of subsequent alteration or removal of rights is inherent in the method of creation of domestic law under this model.

    That is the fourth point.

  • The fifth flows from it. It is that the nature of domestic legal rights recognised under this model of transposition, is contingent. Such rights are inherently limited. That was the description of Lord Millett writing, obviously, extra-judicially, in a recent article which is bundle 34, tab 471 at electronic page -- I think it must be supplemental, 1154, so SUP 1154, if the electronics go crazy.

    The rights are inherently limited. They have no existence independent of the international legal position from which they derive. What that means is that the legislation transposing them from the international plane into the domestic legal plane is a necessary but not a sufficient matter for their existence, and they are also in nature susceptible to change as a result of the exercise of prerogative powers, precisely because they are dependent on steps taken on the international legal plane, where it is the Government that acts.

    So if one jumps forward a bit to the 1972 Act which I will come to in a moment, they are indeed rights which are dependent on section 2(1) of the ECA, as we will see when we come to it, but that is but one of the twin ingredients necessary to sustain their existence. The other is dependent on the shifting international legal picture, shaped as it is by the exercise of prerogative power.

    So section 2 of the ECA does not define the rights or shape them so as to require alteration by further legislative intervention, or so as to create an inconsistency with statutory rights, if the Government exercises its powers on the international plane to remodel or reshape EU law.

    Of course the rights are dependent, not merely on the prerogative acts of the Government, on the international plane, but also the acts of other sovereign actors. We give, in our case at paragraph 51, the example, the hypothetical example of Greece leaving the EU, with the impact on free movement rights of UK citizens that that would necessarily have.

    A real life example is the departure of Greenland within which, should they have chosen to do so, UK citizens could no longer exercise their treaty rights, and the leaving of which was subject to a withdrawal treaty given effect to by an order and not by primary legislation. You have that order, if you want it, in authorities 19, tab 233, MS 6656.

  • Sorry, can you say that again, please.

  • The Greenland order is in authorities bundle 19, tab 233, MS 6656.

  • 6656.

    I think I gave you a wrong reference in relation --

  • You did earlier on but we found it out.

  • My Lady found it first.

  • That is why we need to know how to navigate, because you cannot get everything right all the time, Mr Eadie.

  • Even on some points perhaps.

    In relation to the hypothetical example of Greece leaving and the real example of Greenland leaving as illustrations of the broader proposition, which is that they are not merely dependent on prerogative exercise, prerogative powers by the UK Government but also other sovereign governments, my learned friend Lord Pannick says: that is irrelevant because our constitutional principles regulate the conduct of the UK Government and not that of other states. Of course he is right, so they do. But that doesn't answer the point, and the point is that the rights are self-evidently of a very special kind, linked to action, not merely of the UK but also of other sovereign states on the international plane, and it is therefore simply inaccurate by way of analogy to treat them as if, in relation to their creation, modification or even removal, as if they were the same as what might be called purely domestic rights.

    So those are the five points we make.

  • Is there a distinction between the scope of the rights under the treaties which, as you point out, is ambulatory, may go up or down, may even be affected by somebody else leaving the treaty, and the existence of the treaties themselves?

  • Well, my Lord, we know that there are certain provisions in the ECA when we get to it that deal with the treaties themselves, but my respectful submission is that in terms of whether or not the Government can enter into or withdraw from treaties themselves, the position is fundamentally the same. That goes back to Lord Millett's concept of inherency; it is not just dependent upon or contingent upon the methods of creation of EU law; it is dependent upon the continuation of the very structures which govern. So we respectfully submit that it is essentially the same principle that governs.

    I was going to move to the De Keyser principles, the third of the topics.

  • The courts have considered, on various different occasions and at the highest level, the correct approach in principle to be applied in considering the question whether Parliament has abrogated or limited prerogative powers or their exercise.

    Again, to try and identify the core principles if I may before taking you to -- it will probably only be three or four cases, the core principles are we submit as follows.

  • Are these summarised in your case?

  • I am not sure in quite the order or form I am about to do them, but I will locate the bit in the case if I may, if I can ask someone to find the most directly analogous bit.

    Firstly, Parliament can, of course, limit, control or remove prerogative powers expressly. It is sovereign to decide whether to do so and if so how.

    Secondly, whether it has done so outside that express sphere and therefore in other circumstances is a question of statutory interpretation.

  • I am told that the nearest is 64 in our case where we start dealing with De Keyser, 64 and following.

  • Thirdly, the starting point is to expect from Parliament and for the courts to require real clarity, to put it neutrally, real clarity before prerogative powers are removed. There is good reason for that. It is no small thing, we submit, to alter the constitutional balance, particularly one that has existed for many years, by abrogating or limiting long-standing powers. All the more so where they are, as the foreign relations powers are, fundamental and essential to effective Government.

  • Most cases in which statutes have been held to limit the prerogative have been cases where it has done so implicitly, is that not right, by virtue of the field being at least partly occupied by a statutory scheme; it is never said the prerogative is now abolished, all that has happened is that the subject matter has received legislative treatment.

  • My Lord, that is true. I don't want to quibble at this stage because I am going to develop the principles as we come, but covering the field exactly is going to be the submission, but there are cases, including in the specific context of EU legislation, the Rees-Mogg case being the paradigm example of that, in which the courts, in approaching the concept of necessary implication, have effectively reasoned thus: they say here is Parliament that has intervened expressly to impose a sequence or series of controls on the exercise of prerogative in a particular sphere.

    So, is the next step of the reasoning, one can fully expect them if they are going to do it in relation to some other matter in the same sort of context to do so equally expressly, and we respectfully submit that is the correct reading of Lord Justice Lloyd's judgment in Rees-Mogg.

    But my Lord is right, that in the majority of cases where the issue is controversial, the question has been whether Parliament has, by occupying the field to whatever degree, created the necessary implication. That is why I put as this third proposition, it was neutral, as it were, to the precise nature of the test; it was one can expect clarity because of what is being done; one can expect clarity because it is no small thing to alter that constitutional balance, but one can expect clarity for a slightly different reason, which is that clarity is obviously necessary where there are, or there is, a variety of ways in which the powers could be limited or controlled.

  • Mr Eadie, do you say that the European Communities Act 1972 was neutral as to whether the United Kingdom was a member of the European Communities?

  • We say it proceeded on the fundamental assumption that that ultimate decision on the international plane was a matter for Government, and I am going to come to develop that submission. It was a subject of particular consideration which I am going to take you to by Professor Finnis recently, drawing a comparison between -- in relation to the long title, but equally in relation to the operative provisions of the relevant legislation between the ECA and various bits of legislation that dotted around it temporally, 67, 70, 73, to do with the creation of independent status in the Bahamas, Barbados and so on. But I am going to draw that contrast and come back to that if I may in the context of the 1972 Act.

  • I am simply on De Keyser for the moment, if I may.

  • The second reason for expecting clarity and for the courts demanding clarity, because obviously the principles are for you, is obviously necessary to have clarity where there are a variety of ways in which control could be exercised, could be imposed. Various mechanisms of parliamentary control. What is the nature of that control? Is it primary legislation, is it affirmative resolution, is it negative resolution, is it approval by motion; all sorts of questions that would need to be resolved if control is to be imposed.

    So that the third of the propositions. The starting point is clarity, or the expectation of clarity.

  • The fourth is that it is just as important to have regard to what Parliament has chosen not to do, as it is to have regard to what it has done in the context of a particular legislative scheme. So a limited, carefully considered scheme of limits and controls will imply that matters falling outside such limits and controls remain untouched. That is likely to lead in practice and in principle to a place in which Parliament has evinced an intention in the particular context, if that is so, to control expressly or not at all, to come to the point that my Lord, Lord Sumption was putting to me. That is significant.

  • This is presumably a harbinger of the point you want to make about the 2008 and 2011 acts.

  • They are. They are leading towards those. I am going to take you through that statutory scheme.

    Fifthly, if there is no express control and the context is not as I have just described, in other words Parliament has already intervened to put a series or sequence of controls in place, if there is not express control and you are not in that place, the test developed by the courts is whether legislative intervention in a sphere where prerogative powers exist, creates a necessary implication. That is the test, that the prerogative can no longer be exercised. In other words, that it can no longer be exercised without legislative -- prior legislative authority.

    A necessary implication is, we submit, the correct test, it is the test that has been regularly applied by the courts, and it imports the stringency of logical imperative from the language used, rather than mere reasonableness.

    Again, you need no introduction from me to that test first laid down by Lord Hobhouse in Morgan Grenfell but that, we respectfully submit, is the nature of the necessary implication case. The necessary implication flows, again to finish the answer to my Lord, Lord Sumption's point, it flows if at all from the fact that the very thing, the very thing which had been previously done by prerogative has now been, to use the phrase that we will see in the case law when I come to it in a moment, "directly regulated by statute".

    The sixth of the propositions, before coming to the case law, is that, in approaching the issue of whether or not the prerogative continues to exist at the point at which the power is to be exercised or is proposed to be exercised, it is necessary to consider the scheme of the legislation as it exists at that time. Because legislative schemes can change from time to time and the question is a current one.

    That is the conventional approach, the set of principles that I have just outlined, we respectfully submit is the conventional approach that the courts have developed over the years for asking the question whether fundamental prerogative powers existing under our constitution have or have not been abrogated. It is to be acknowledged as such, in other words, it is to be acknowledged as the conventional approach directly relating and directly addressing the principles that apply in answering that question.

    I fully appreciate and I will come back to it, that the key focus of the respondents' case is whether there is another principle or set of principles in play in the present context to do with affecting statutory rights as a result of the exercise of prerogative powers, but the conventional approach remains, we submit, of critical importance, as the correct approach, and in any event in testing whether a principle of such clarity and such weight of the kind for which the respondents contend, is properly applicable in our context. In effect, to reverse that conventional approach. In effect to say it is no longer a question of asking whether Parliament has expressly or by necessary implication removed the prerogative; now if this other principle is in play, that test is in effect reversed and it is said you have to ask the question the other way round and point to or be able to point to express powers and legislation permitting you to interfere with rights.

    So it does involve a pretty much direct reversal of the conventional approach set out in De Keyser.

  • If there was a real circumscription of the prerogative by implication, and the Act which brings about that implication is repealed, does the prerogative power revive? Is it resurrected?

  • My Lord, it can do, is I think the logical consequence of my submission because it is a current question. If I propose to exercise prerogative power on behalf of the Government, what the courts need to do is ask the question: does that prerogative power exist today? Of course there are some circumstances where when a prerogative has been put into abeyance, it doesn't come back, but if it is fundamentally dependent upon the nature of the legislative scheme, that, we respectfully answer to my Lord's question, is a current question.

    I will come back, I am going to develop submissions as to whether or not -- on one view it is fairly critical, because it is jolly difficult, we will respectfully submit, for my learned friends to answer the flow of the legislation that follows the 1972 Act. The high-water mark of that case is the 1972 Act, because it does not contain the great scheme of controls that Parliament subsequently developed. You know from reading the divisional court's judgment that they effectively treated as legally irrelevant for this purpose any Act which followed the 1972 Act, and we submit that that is fundamentally wrong as an approach, but I will come back to develop that submission, if I may.

    I was going to take you to De Keyser, it is in core authorities bundle 2, tab 10, MS 228.

    The essence we submit is in, just for my Lord, Lord Clarke's note, the quote from Lord Parmoor which we have set out in our case at paragraph 66.

  • The basic points we get from it, I have already summarised, if the statute directly regulates, directly regulates, the source of the authority becomes statutory, it ceases to be the prerogative, and then is subject to such controls as Parliament has specified, but it is the direct regulation of the very thing which creates the necessary implication of legislative abrogation or control. So it requires, as essential to this approach, a precise identification of the Government activity, and then asks the question: has that very activity been subject to new statutory conditions, governing its exercise so as to lead to that implication. Of course, so as to avoid having to repeat it as we go through, the precise activity in question is the withdrawal from the treaties on the international plane or more directly, the giving of the Article 50 notice.

    So when we come to our legislation, that is going to be the key focus.

    You know, I hope, and think, and if not, someone better shout, but you know the background and the nature of the facts. The army council requisitioned a hotel for the use of the Royal Flying Corps and it denied the hotel owners a right to compensation, compensation which the claimant said was due to them and the Crown, in the House of Lords, claimed that the right to requisition was a right to be found and sourced in the prerogative, and the prerogative did not carry with it the burden of compensation. So a critical question was whether or not the requisition was entitled to be done in exercise of that prerogative, for which no compensation was payable at all.

    The speeches are interesting because they indicate the test which is to be applied in answering the question whether the prerogative has been abrogated or supplanted.

  • Do the speeches proceed on the assumption that that was correct, that the royal prerogative existed to requisition property in the UK in wartime without paying compensation? Do they proceed on the assumption that that is correct, or do they discuss that?

  • Well I think they do a bit of discussion of that. My Lady is right to draw me up. They do a bit of discussion on that, as it were, in phase 1 of the analysis, and then phase 2 says assume for the sake of argument that that is so, that the prerogative would otherwise exist, and it is the sort of question that was discussed in the context of foreign requisitions in Burmah Oil, as you will recall.

  • That is why I am asking.

  • Quite, but in relation to this, they do discuss that question, but then go on to consider, assume even, that the prerogative was ever of a nature that allowed requisitioning without compensation, has that now been subjected to conditions as a result of the introduction of legislation?

    So my Lady is right to draw me up on that, but the key part for our purposes is perhaps the second phase of that analysis.

    In the first of the speeches by Lord Dunedin, and the key passage, or passages, I am going to go on the MS numbering, if I may, bottom of the page, 246, and you will see about five or six lines up from the bottom of the first full paragraph, a line beginning "equally certain", just to pick up that sentence there:

    "Nonetheless it is equally certain that if the whole ground ..."

    I have circled "whole ground".

    "... was something which could be done by the prerogative is covered by statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls is unanswerable."

    Then you see the question that was unanswerable towards the end of that paragraph. Then there is a definition of the prerogative and then you see picking it up again three lines up from the bottom -- perhaps you could read that sentence about five lines up from the bottom of that page:

    "In as much as the Crown is a party to every Act of Parliament, it is logical enough to consider that when the Act deals with something which before the Act could be ... by the prerogative [my Lady's question] and specifically empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that and by that act to the prerogative being curtailed."

    It is direct overlap, the concentric circles, the whole ground, the same thing, and that leads Lord Dunedin to his conclusion which is that the Act of 1842 which provided for compensation and indeed the Act of 1914, which was neutral on the point, did indeed cover the whole ground. It allowed the requisitioning to take place. It effectively said: if you are going to requisition you had better pay, and you cannot get round that statutory regime by relying on prerogative power.

    You see his conclusion most clearly expressed on this point at page 248, just before the end of the long paragraph occupying most of that page, about seven lines up:

    "It is therefore impossible in my opinion ..."

  • Could I invite you to read from there to the end of that paragraph:

  • (Pause)

    That was Lord Dunedin. Lord Atkinson, if you want it there is a little bit explaining why the 1914 Act does not alter that, but that is on the next page, about a third of the way down, but not central to the reasoning. Lord Atkinson is next and the relevant parts of his speech are really on page 259 to 260.

  • Can I invite you to read again rather than my reading them out, sorry, it may be difficult to follow for those just listening but it is about a page worth. If you go to 259, if you go to the first full paragraph:

    "I further concur with him ..."

    Could you read from there to the end of the full paragraph on the next page.

  • If you want to sit down while we do that, you are welcome.

  • (Pause)

    Thank you, so we have something on answer to Lord Kerr's point there about while it is still in force.

  • My Lord, yes, and the bits I was going to particularly invite you to circle as it were, and the only thing that changes is the precise description and the fact it is sometimes plural and sometimes singular, the first of the paragraphs, I invited you to read the one beginning:

    "I further concur ..."

    Three lines up from the bottom of that, "the very things". Next paragraph, six lines down, of the line beginning:

    "Of its prerogative to do the very thing ..."

    Two lines up from the bottom of the page, "particular thing", which becomes plural in the second line of the first full paragraph on the next page, "particular things", but it is all the same point.

  • It is. That is Lord Atkinson. Lord Milton(?), 274, again a similar analysis, 274, the key bit is probably the second full paragraph on page 274, asking the question that it does in the final sentence, and then essentially the same reasoning that we have just seen in the remaining paragraph on that page.

  • That is the relevant bit in him. Lord Sumner, 281, and again could I invite you just to read down the first full paragraph, the only full paragraph, on that page, 281, could you just cast an eye down to -- you can stop at the word "speed", three lines up from the bottom of the page.

  • (Pause)

    It is subject matter rather than thing.

  • It is subject matter rather than thing, but it is still directly deal.

  • It is essentially the same reasoning. And Lord Parmoor, 295 to 296.

  • This is the passage you quoted in your case.

  • This is the passage we quoted in our case, you perhaps don't need it, but just for your note, there it is.

  • Endless concurring speeches.

  • All expressed in subtly different ways but substantively the same, is the submission.

    That is therefore De Keyser. Laker Airways is in the same volume of authorities behind tab 12, starting at MS 307.

  • Again, the facts will be very familiar to my Lords. This involved the Government effectively trying to use the prerogative to give in effect a direction to the Civil Aviation Authority to frustrate or terminate the ability of Freddie Laker to run Skytrain between Stansted and New York, in circumstances in which there was an express legislative power, which was subject to conditions which could have been used. That is the summary of the facts. Can I take it first try and deal with it quickly, take it first in the judgment of Lord Justice Roskill. 307 is the first of the pages, Lord Justice Roskill at page 382.

  • Where he identifies the issue. The letter G. "The sole question", do you see that by the letter G.

  • So that just frames the issue. Just that sentence will do for that purpose.

  • Then he sets out on the next page, 383, at letter E, what he describes as "the relevant principles":

    "The relevant principles upon which the courts have to determine when a prerogative power has been fettered by statute were exhaustively considered by the House of Lords."

    He sets out lots of quotes which you have now seen.

  • We have read, yes, thank you.

  • Principles to be applied plain, 385 at F, and then he proceeds to analyse on the particular facts of that case why it is that the necessary implication arises, to preclude the exercise of statutory power. The key reason that it might be thought is 386 between F:

    "In short I do not think the Attorney General's argument ... prerogative power and the power ... municipal law can march side by side each operating in its own field is right ..."

    Can I just ask you to read from there to the bottom of the page.

  • So it is simply an application of the principles that he has taken and considers to be plain from the House of Lords speeches in De Keyser, but you will see, and it is not very difficult to understand, how the direct regulation, the same thing, all of those principles, all of that approach is applying --

  • Is it quite on those lines? I thought that this was a slightly different application or possibly principle. The fundamental reasoning was that, having gone through all the necessary statutory hoops, the airline had received a licence, and this was then being nullified by the Government, by using a power which it had to withdraw designation under a Bermuda agreement with the United States, thereby, by the back door, undermining what it wasn't -- what it had done by the front door.

  • My Lord, it is in part that, you are right. It is a slightly more subtle, as it were, application of the same thing. But it also had an element of direct De Keyser, if I can put it that way, as you see on 386 between B and C, because the relevant legislation did indeed provide for power under the Secretary of State to revoke the licence.

  • Under section 4, yes.

  • Under section 4 and what was being done was the power to exercise the prerogative power --

  • Only in certain circumstances.

  • Exactly, subject to the limitations that Parliament has imposed, so there is a bit of direct De Keyser in that way, and there is a bit of the point that my Lord put to me between F and G. I perhaps took it a bit quickly, I should have taken you to between B and C as well but you have a bit of both in there, and then Lord Justice Lawton, to similar effect, and you probably ought to read between H on page 391 down to D on page 392, just to get the essence of his reasoning.

  • (Pause)

    You see in particular that between C and D, he essentially focused on what I call straight De Keyser.

  • Necessary implication, yes.

  • Necessary implication, but also reliance particularly, focus particularly on section 4.

  • Lord Denning, I don't know why I have come to him last but I have.

  • I think A, of the passage on which the respondents rely.

  • Quite, that is why I invited you to read the whole passage. It has to be read in context.

  • You cannot use the Crown powers to take away the rights of citizens.

  • In circumstances in which, as we then see, section 4 provides the right to revoke the licence, and Parliament has subjected any such deprivation to statutory control.

  • Presumably the same reasoning would apply, even if there had not been a statutory right to revoke.

  • You would be frustrating, cutting across.

  • You would be cutting across, so that is an independent line of reasoning to the one you have referred to under article 4.

  • My Lord, it is, but we respectfully submit it has effectively the same source and drive which is parliamentary intervention in the field of scheme of regulation, and so on. It is not, and I should have picked up directly, my Lord is right, it is not simply, as it were, and as a freestanding principle, the point between A and B. That needs to be read properly in its context, is our submission about that.

  • You were going to take us to Lord Denning.

  • I was going to take you to Lord Denning.

  • Lord Denning was perhaps not in the majority on this one.

  • That may explain why I am taking you to him last. I can't remember if it was quite on this point, but the essence of his reasoning was similar at least. 370 at H, over to C on the next page.

  • (Pause)

    We have back door and front door which is always an attractive submission.

  • It might be thought to echo strongly in Lord Denning's mind, but one also has -- could he disclose the statute by invoking a prerogative.

    Ex parte Fire Brigades Union, same bundle, tab 15, MS 444. This also is subtly different in terms of the facts, because you will recall the way in which the issue arose. It is really De Keyser by analogy rather than directly, because the legislation in question was not in force. But the court was concerned with a situation where Parliament had legislated for the way in which the Secretary of State was to act in order to achieve a particular objective, there setting up the criminal injuries compensation scheme; but the Secretary of State had sought to achieve different results through the exercise of the prerogative and setting up an ex gratia or slightly different tariff form of scheme, and had then deliberately, as it were, decided not to bring in the relevant legislative provisions.

    I perhaps only need a custom short bits from Fire Brigades, 483, using the MS numbering in the speech of Lord Browne-Wilkinson, 483, it is really the bit between D -- that paragraph beginning by the letter D on page 483, culminating in the citation of De Keyser.

  • Again, it is a different principle, or certainly a different ambit to De Keyser's principle. They actually say, don't they, two of the majority, Lord Browne-Wilkinson and Lord Lloyd, that De Keyser's Royal Hotel does not help in this case. The case has been decided on a different principle, if you look at 553 G and 573 C. 573 C.

  • My Lord, yes, but that is because the statutory provisions are not at that point in force, so it is by necessity, as it were, De Keyser by analogy, but the reason I took you to the passage between D and F on 483 is because he is there citing the basic approach in De Keyser and setting out the principle that applies.

    Of course the position is here that the legislation is not in force.

  • The principle being implied is that you cannot use the prerogative power to undermine a right or an obligation, isn't it? In this case it was an obligation to consider bringing into force the legislation.

  • My Lord, ultimately, if the legislation had been in force, or if the legislation was in force, it would be direct De Keyser, so you cannot undermine -- you cannot use the prerogative to undermine the law of the land. That is the general principle, and everyone accepts that, that is uncontroversial, but the question is how it applies. You can do, see Lord Oliver, if there is parliamentary intervention as he put it.

    But the reason I keep going back to 483 D to F is because it sets out what De Keyser does stand for, which is where you have got reputation in play, the test is expressly or, as he puts it here, by implication.

  • Are these three cases anything more than interesting examples of the application of the necessary implication test?

  • My Lord, I respectfully submit not. I am sorry it has taken a long while to get to that point, but I did want to drive home the idea that it is expressly or by necessary implication as -- the scheme and then everything else flows from that. You can take it by analogy from that stage on, or you can apply it directly, but in the end it is the same thing, it is the same beast, the same principle.

    The vice, it might be thought, in Fire Brigades Union, and we will come to its specific facts as an example, and the reason Lord Browne-Wilkinson ultimately decides as he does, one sees from 485 between G and H. That is really the nub of the objection, the last two sentences of that paragraph, by introducing the tariff scheme he debars himself and so on, that is the essence of it.

    We see that also, in terms of the final reference here, from Lord Nicholls at 509, between E and F. Perhaps we could pick it up at the line beginning:

    "The inescapable conclusion is that the home secretary has effectively written off ..."

    (Pause).

    Ex parte Rees-Mogg then if I may, same bundle, tab 14, MS 424. You see the context from the headnote, I would just invite you to cast an eye down there to get -- this is all about Maastricht and whether or not there was powers to sign up to various protocols that were part of the Maastricht treaty and the key passages for our purposes are on -- start on page 439.

  • 439 electronic, under the second issue.

  • Just so you see it, can I invite you to read that page and a half, or a bit more than a page and a half under the second issue before you get to the third issue on the next page.

  • So we respectfully submit that the key paragraph for present purposes, which is the primary basis for rejecting the argument is the paragraph at the bottom of page 439. They were unable to accept the argument that Lord Pannick was mounting.

  • Do you submit that means there is a difference between the test to be applied, depending on whether we are talking about the prerogative to make treaties or unmake them, or other aspects of the prerogative, as we have seen in the cases you have just cited? In general, it is an implicit displacement by statutory intervention in the relevant field, but is it your submission that there is a tougher test to be applied for this particular prerogative power?

  • My Lord, there is a tougher test to be applied in accordance with this reasoning, not so much because it is treaty power, although it was treaty power there, but because Parliament had intervened in the area in which the prerogative was exercised, to impose a whole series of controls already. And that carried with it, as it were, the implication that if it was going to intervene to control that sort of action, it would do so expressly, so it is almost an aspect --

  • It is a sort of exclusio --

  • Exactly. It is almost that. It does say you have gone in there, you have designed the scheme of control; having gone there and designed the scheme of control, you can draw the inference if you will that if Parliament is going to control, it is going to do so expressly and that is the sort of thing one would expect, if what you are dealing with is a beast that requires decisions to be made of a legislative kind around things as basic as what should the mechanisms of control be; should there be primary legislation, should there be affirmative resolution, should there be motions to which Parliament consents and so on. That is the point that is being made.

    My learned friend below, and I think the divisional court accepted this, said no, no, you can pretty much bypass that paragraph with that reasoning in it, because as they ultimately go on to conclude, the protocol on social policy, and this is the remaining part of the analysis under the second issue, they then conclude that that protocol would not in any event become part of domestic law, so where is the worry?

    But my respectful submission is that is a second strand, a distinct strand of reasoning and it doesn't touch, because it provides simply a distinct reason for reaching the same conclusion, it doesn't touch the reasoning that one sees in the final -- which it might be thought is self-evident -- one sees in the final paragraph on page 439.

  • Just to clarify, it is not your case that the treaty-making prerogative is subject to a different principle?

  • It is not my case that treaty-making prerogative, just because it is treaty-making prerogative, is subject to different rules on the back of this paragraph --

  • Generally, and I will come to develop that argument -- well, I will come to develop that argument, but the point that is being made here is not dependent upon it being a treaty, but is dependent upon the fact that Parliament has chosen to intervene in the way that it already has. It is that that creates the inference that if it is going to do so again, it will do so expressly because it will be altering the nuanced scheme that it has already designed.

  • Can I just ask you where this fits into the scheme of your submissions as a whole? Does one not have to ask first what is the nature of the prerogative power? Is it a prerogative power which authorises one to do things on the international plane which do not have the effect of altering domestic law, or is it a general prerogative power? The reason why that matters is that, if the prerogative power never did extend to doing something that altered the domestic law, then no question of abrogation arises. You arrive at a situation where its exercise would alter domestic law, and you cannot do it, not by virtue of any implied statute or express statutory provision, but simply because of the conditionality of the prerogative right one is talking about.

  • My Lord, yes. I think the way I would answer that is that there are two different beasts in play in our particular context. The first of them asks what is the usual way in which the courts and what are the principles on the basis of which the courts seek to answer the question whether or not the prerogative power has been abrogated; and the second of them asks what is the nature of the 1972 Act to which I will come, and the way in which it has set matters up, so that effects on the international plane are directly and automatically introduced into domestic law.

  • Before you get to that, you surely have to ask: what are the limits if any of the prerogative power to make and unmake treaties? If the position is that the prerogative power is only as broad as it is, because the assumption is being made that it does not alter domestic legal rights, then, you know, one may well arrive at a situation in which you just never get to the question of what the statute says, unless it is being suggested that it actually confers a prerogative right to change the law which would not otherwise exist.

  • My Lord, I see that as a prior question, but we respectfully submit that the prerogative power in the field of making of treaties, ratification of treaties and withdrawal from treaties, is and always has been a general power, untrammelled by any such implication which can have, and I will develop this in a variety of ways, impacts into domestic law through any or all of the various models that we have analysed our in our cases.

    So although I see the force of asking that as the prior question, as it were, as a prior question, we respectfully submit that is a question that has to be answered, recognising that (a) it is a general and untrammelled power ordinarily, and so if you get to the stage where you are saying: is there a freestanding principle that would control it in limine; you have to answer that question or ask that question in the context in which it arises; and recognising that exercises of prerogative power can and do have impacts into domestic law. That is not to say you don't still go back to the statutory scheme to see whether there are limits on that that Parliament has imposed.

  • What do you mean by impacts on domestic law? Do you mean actually changing the content of domestic law, or do you mean simply altering the facts to which an existing principle of domestic law applies?

  • It could be either or both --

  • They are very different things.

  • They are very different things, but they could be either or both, which is why the ambulatory scheme and how the 1972 Act works and all of that is important. I accept that one is not necessarily dealing with the same beast when one is considering Post Office v Radio or matters of that kind, or even in the argument that my Lord advanced in JH Rayner, which was fundamentally premised on drawing that distinction between factual matters that sound in international -- or international legal facts, as it were, and other matters.

  • This is the fundamental distinction between you and the other side, isn't it? Do you start from the proposition that there is a well-recognised power to make and unmake treaties, and the only questions are, is it subject to any statutory restriction, express or implied, or subject to some common law principle such as abuse of power. Alternatively, as my Lord puts to you, you ask: is there actually such a power at all if it has the effects on domestic rights?

  • One answers that question by looking at the way in which prerogative power has operated in --

  • I understand how you answer it. But there is obviously an alternative view which is diametrically opposed.

  • My Lord, that is Rees-Mogg, unless anyone wants more on Rees-Mogg. Just before the short adjournment, can I deal with, just by way of mention only, I am not going to take you to them, but if you still have the will to look at other authorities on the basic approach to abrogation of the prerogative, Northumbria Police Authority, which you will recall is all about police ordering various bits of equipment, that is perhaps worth a read; it is in authorities bundle 8, tab 77 at MS 3059; and a recent case which involves the exercise of prerogative powers by the home secretary to remove people's passports, cancel or withdraw passports, Ex H. Currently we only have the judgment in the divisional court, and I am threatened with the Court of Appeal next week comprising inter alia the Master of the Rolls and Lord Justice Sales, who will no doubt be familiar with the basic De Keyser principles, but that also is of some interest at least in analysing that.

  • Core authorities, bundle 4, tab 66, 2781.

  • You say it is of some interest; do they take this any further forward or are they more of the same?

  • They are really an application. It is an application in a different context, I hesitate to take you to it because my Lord, Lord Wilson raises a fair point. One can go to all these cases, and they are different illustrations of the same basic approach and principle. It is an interesting analysis there and it contains, if you want it in a convenient place, Lord Hobhouse in Morgan Grenfell, but the relevant paragraphs for present purposes are really from 39 to the early 50s.

    52, I think.

  • Do I get the impression this is a convenient moment, Mr Eadie.

  • My Lord, it may be a convenient moment. I was going to go to a principle of the legality.

  • Let's leave the principle of legality for 2.00.

    We will rise now and we will resume at 2.00. The court is now adjourned.

  • (The Luncheon Adjournment)

  • Mr Eadie, a word about timetabling before you start. We are due to start at 10.15 tomorrow. One of us has a medical appointment which means it is possible we will start a bit late. If we do, I apologise in advance, and if you have until 1.00 and if you lose 10 minutes at the beginning we will sit into lunch to make up the 10 minutes if you need it.

  • I am very grateful. I will try and avoid that disaster if humanly possible.

  • Disaster may be a little bit high, but it depends how much you care for your lunch.

  • The principle of legality, and still under the broad heading of the De Keyser principles and how the two marry up, we respectfully submit that the approach in De Keyser has at least some similarities to the principle of legality, but what the De Keyser principle does is to focus on the fundamental importance of the rights of Government to act in the public interest for the overall good in exercising prerogative powers such as in the foreign affairs context. It requires, similarly to the principle of legality, real clarity before those powers are taken away.

    In that sphere, in other words considering whether or not the prerogative power has been impinged upon, the courts do not approach the question of whether the prerogative power has been interfered with or abrogated, by asking simply whether or not that power has the capacity to affect rights.

    We know that it does, in a variety of different ways, and indeed many of the cases in which the De Keyser principles were hammered out involved precisely that feature.

    Many of those cases were precisely about the use of the prerogative to interfere with rights, including common law rights to property, as the paradigm example in De Keyser and indeed in Burmah Oil itself.

    The principle of legality is also, you will know, a rule of statutory interpretation designed essentially to control as an aid to interpretation, generally expressed powers conferred on Government by statute.

    Here we submit the question is not as to the breadth of generally expressed statutory powers; it is different. The question is whether or not Parliament has abrogated the prerogative which sits alongside the legislative schemes impinging, as they sometimes do, and to various different extents, on to that territory occupied by the prerogative.

    So that question is answered naturally, we submit, by examining the legislative scheme as a whole against the constitutional backdrop we have described. So it is fundamentally different, we submit, from the principle of legality.

    My Lords and my Lady, I was going to take you next to the fourth topic, which is the application of the basic De Keyser and dualist principles in the present context, and that obviously starts with the nature of the statutory scheme.

    So, apologies, it has taken a bit of a lead-in to get there, but the statutory scheme, if I can start it here, with CRAG itself, the 2010 Act, which is in core authorities volume 1, tab 5, MS 131.

  • We start here not with the 1972 Act.

  • We start here just because this is a general scheme of control, that is the logic of it, by Parliament over treaty-making powers, treaty making and all other things to do with treaties.

  • Was this the first time any such scheme -- general provision had been enacted.

  • Basically, to some extent, a statutory codification of the Ponsonby principle.

  • That was going to be the first point, exactly that, and you have the Ponsonby memo if you want it in bundle 15, tab 158, MS 5038, but it does exactly what my Lord the President has just described; it involves in effect Parliament considering, for the first time in relation to 2010, but Parliament considering the controls which it wished to impose generally in the context of treaties.

    The upshot is as we see, you may have not had a chance to glance at it briefly but it is in effectively part 2, which are the only bits I hope which are in your bundle, of CRAG. I should point out at the outset, there is a cut out from CRAG for treaties to which now the European Union Act of 2011 applies, as you see from 23.1(c), so there is a separate regime governing controls which I am going to come to in a moment.

  • Can you give me that section again?

  • What did it say originally in section 23? Do you remember which provisions were specified in it?

  • It probably would have been the 2008 Act. We will get the original for you overnight.

  • I am pretty sure it would have been the 2008 Act, because the next one in the sequence after that is 2011, which will have postdated this.

    So there is a cut-out for treaties to which that applies, and there is detailed provision made for the particular kinds of parliamentary influence over the prerogative powers hitherto untrammelled, as it were, to do with treaties.

    So in section 20, just to show you very briefly what the scheme involved, subject to what follows, the treaty is not to be ratified, so it is a control over ratification, unless -- and then you see the mechanism of parliamentary control that is imposed, which is the laying before Parliament of a copy of the treaty, 20(1)(a), something allowing potentially the public to get engaged in the debate in 20(1)(b), the treaty being published in the way the minister of the Crown thinks appropriate.

    And then effectively negative resolution, 20(1)(c).

  • Then period A, so that is 21 days for a negative resolution to be put in place; and the consequence of the House of Commons resolving that it doesn't wish the treaty to be ratified is then dealt with in subsections (4) to (6).

  • But you see from that that you have the negative resolution procedure, then effectively you have a two strikes provision, so that the minister of the Crown can relay, this time explaining why it is that they want the treaty ratified; and then they get another 21 days within which that negative resolution can again be exercised by the House of Commons.

    Then the clarification in 6 that it can be done, a statement can be laid on more than one occasion.

    So that is what happens if the Commons votes against, you get another go, and then the Commons can vote against again if they wish. But it is effectively a double negative resolution procedure.

    Then in 7 and 8, they make specific provision for what happens if the House of Lords resolves that it doesn't want the Government to ratify the treaty, but the House of Commons is content, effectively.

  • On that occasion the consequence is that in sub 8, the treaty may be ratified, that is if the House of Lords voted against but the House of Commons -- or are content as it were:

    "The treaty may be ratified if a minister of Crown has laid before Parliament a statement indicating the minister is of the opinion that the treaty should nevertheless be ratified and explaining why."

    So there is not a double whammy on that occasion, there is simply a burden of explanation under this.

    So that is what happens in relation to the general scheme of ratifying treaties; you don't need to worry too much about section 21. All of that, the scheme that I have just identified in section 20, is subject to the exceptionality provision in section 22.

    Of course the minister of the Crown should rationally have to conclude that the matter was exceptional, but if he did, then the process is a different one. You don't have negative resolution if he decides that exceptionally it should be ratified without them being met, say, for example on time grounds or whatever else it may be, some other exceptional reason. You don't have the negative resolution process, but you do have the duties that are imposed by 22(3).

    Just for the sake of completeness, there is a burden or a duty to produce an explanatory memorandum, 24 --

  • Basically this works on the basis of Parliament is given an opportunity to jump in and say: don't do it.

  • Exactly so, subject to -- even within section 22, it might be thought. They could still say: we insist. That would be within their power.

  • Treaty is defined and ratification is defined in the manner that you see in 25, to complete the picture.

  • So we take three short points from CRAG. It is firstly significant, we submit, because Parliament has intervened in the area of treaties and decided what intervention in this prerogative sphere it wished to have. That piece of legislation was the product of detailed and careful consideration, with a nuanced set of controls, and those are properly judgments for Parliament to make, as it has done in this piece of legislation.

    Secondly, the intervention by Parliament in general terms in relation to this suite of powers that accompanies treaties is express and nuanced. It reflects precisely the sorts of decisions that one would expect Parliament to make and consider, if intervening in this sort of context to alter the usual position, namely that the Crown exercises those prerogative powers as it sees fit in the public interest.

    It applies to ratification of treaties. It leaves untouched negotiation or making of treaties. It produces a considered system of controls dealing precisely and in detail with the form of control that Parliament wished to exercise, and you have seen the layering and the subtleties of all of that, laying a copy, subjecting it to negative resolution, exceptionality and all of that; there are a series of decisions about the nature of the parliamentary control that Parliament wishes to impose.

    The third point is the obvious one, that it includes no requirement, even for limited forms of parliamentary involvement in decisions by governments to withdraw or commence the process of withdrawal from treaties.

    That is so, we add in brackets, even though withdrawal might have impact on rights and obligations, on the international and domestic legal planes. So there is therefore, we submit, a considered decision by Parliament to leave withdrawal to the Government in the usual exercise --

  • What was the origin of this? Is there some sort of paper behind all this?

  • I am sure there will have been a White Paper and there will have been debate in the usual way.

  • It was all carefully considered, you have told us, so presumably you have evidence for that.

  • My Lady, we will check overnight to make sure you have the White or the Green Papers, whatever there was.

  • It doesn't say anything about domestic rights, does it; the ratification leaves completely unaffected how the treaty will take effect, if at all, in domestic law.

  • That is true. It is fundamentally a control of the exercise of the prerogative powers on the international plane.

  • But (Inaudible) legislation, and by the same token it doesn't deal at all with what the withdrawal from a treaty, what the effect of that would be on domestic rights.

  • It doesn't deal with transposition at all. If one examines these as two separate elements involving on the one hand, as it were, the exercise of prerogative power on the international plane, giving of notice, whatever it may be, the withdrawal from the treaty, the ratification of the treaty, and there is a separate set of questions around transposition and impact into domestic law.

  • Were these issues discussed, do we know, in a White Paper of any sort?

  • In terms of transposition? I doubt it, because this is simply designed to control the exercise of those prerogative powers in that way on the international plane.

    But we will check.

  • Going back to your ambulatory rights, there is a whole framework which I think is not reflected in the papers at the moment, involving liaison between the Government and Parliament, and involving parliamentary scrutiny by the European committees, both of the House of Commons and the House of Lords. That is subject to the now published Cabinet Office guidelines. Now, that enables parliamentary input into changes in the rights and obligations which you describe rightly as ambulatory.

    Is there any equivalent system of liaison and supervision in relation to a decision to withdraw from a treaty or to exercise the royal prerogative in any other respect?

  • Not as far as I am aware.

    But we will, again, if we need to, we can pull together that raft of documentation and just double check; so not as far as I am aware is the answer to that but I will check.

    But that is CRAG and my Lord, Lord Carnwath is right, it goes to the exercise of these prerogative powers on the international plane. It doesn't deal with or purport to deal with transposition or effects into domestic law or anything of that kind, but it is nonetheless significant, because it is the act which controls and exercises parliamentary regulation over those sorts of powers, so it is parliamentary intervention into the field. And you have my submission already, the basic submission, which is that the prerogative power is a freestanding source of power, so if Parliament is going to be intervening into that field, it does so expressly, deliberately and in this sort of nuanced way.

  • It also helps you to reject the suggestion that the exercise of these powers on the foreign plane were somehow a hangover from medieval times.

  • Quite so, because this is the 2010 piece of legislation.

  • We know it has some introductory notes, because the note said, but we haven't got them, I don't think.

  • We haven't got that. We will check if there is anything relevant in that.

    I am told we have the Green Papers and the White Papers in the bundles. It tells you all you need to know about the weight of preparation. The Green Paper is in bundle 15, tab 166, MS 5189; and the consultation paper is at tab 167 in the same bundle, bundle 15, MS 5213.

  • What was the first reference.

  • 5189 and then 5213, and 166 and 167 within bundle 15.

  • The European Communities Act 1972, to go back in time, tab 1, within the core authorities of volume 1 and that is at page 17, as originally enacted.

    You have the current version if you want it in the next tab but for present purposes it may be sensible to view it as enacted.

  • Sorry, which one is as enacted?

  • As enacted is tab 1, MS 17, and then MS 54 behind tab 2 is current.

  • I make a general and overarching point first of all in relation to the 1972 Act which I know you will have read, which is that it made no provision whatever regulating any future decision to withdraw from the EEC treaties. That was so, even though withdrawal was well within the contemplation of Parliament at the time of the passing of the ECA, as the divisional court correctly acknowledged. There was debate in the divisional court around how that might occur, but at least if all parties consented, it was plain that withdrawal could occur, as the divisional court accepted correctly at paragraph 56 of their judgment.

    Indeed, it is notable that the European Communities Act 1972 places no restrictions at all on the treaty prerogative in the EU context. There is a real and serious contrast between that fact and what Parliament chooses to do when it wishes to assert control over the exercise of prerogative powers in this sphere, see CRAG.

    Start with the long title, "An act to make provision in connection with the enlargement of European Communities to include the United Kingdom", and so on.

    We submit in relation to the long title, perhaps if I could break this down into the submissions we will make about each of the sections, I know you will be familiar with them and will have read them, but that may be a convenient way to do it, but in relation to the long title we make these submissions.

    It is, we submit, accurate as a general summary of what the Act does. But it will be accurate in that way whether the Government retained its long established power to withdraw from the treaties or it did not. There is nothing in the wording of the long title -- to put a point negatively, there is nothing in that wording to support the significance that was attached to it by the divisional court, we submit.

    There may be a positive point to be made in relation to the long title. That is the first submission.

    The second submission is the positive point. It does not state that it is an act for and in connection with the UK becoming a member of the EEC. Nor is there any operative provision in the Act itself authorising the Government to act on the international plane to make the UK a member.

    The wording used in the long title is not the wording, "an act to make provision for and in connection with ..." et cetera. That is not the wording that is used, and that stands in contrast to precisely that sort of wording, for and in connection with, that was used around exactly this time when independence was being conferred on Barbados, Fiji and the Bahamas. That is of interest because those pieces of legislation do dot around 1972.

    If you go into the supplemental bundle, the black 11 KBW bundle, you will see the way in which that is done, at tabs 1, 2 and 3. So 1 is Barbados, 2 is Fiji, 3 is the Bahamas and they all use the same words, the dates and the significance of the dates because they dot around 1972, you see; 1966 was Barbados, 1970, two years before this act, was Fiji, and then the Bahamas was one year afterwards. But you see that their long title is "An act to make provision for and in connection with ..."

    It all is in the same form, just to look at the Barbados one, and then you see --

  • The difference is the absence of "for", is it?

  • "for and in connection with". That is leading one in to the point of substance which is that they then have an operative provision which is in section 1, effectively. Her Majesty's Government says: I have no responsibility for the Government of Barbados and so on; so they are then setting out the nature and effect of what legal position is being created, as it were, in a way.

  • What about the earlier resolution of both Houses, which effectively gave the green light to the Government to go ahead with negotiations or -- do we have that somewhere in the papers?

  • You do, and I am going to come to that if I may. My Lord is right, but it poses the question whether the Government could have ratified the treaty of accession unless and until it enacted the ECA, which is what the divisional court concluded, my Lord is right; resolutions, as it were, support motions in the House, but there wasn't an Act of Parliament. You didn't need the ECA to ratify feeding the accession treaty to the EEC.

    Can I come to that? I am going to come to it in due course.

    Just to finish this point, we claim no originality in terms of this point; it is the point that is made and developed in the recent lecture by Professor Finnis, which you also have in that supplementary bundle, behind tab 12. The relevant part is page 11 and following. But the basic structure of this legislation is therefore as reflected in its long title, and in the absence of any equivalent, as it were, to section 1 of the independence pieces of legislation; the basic structure of the legislation as reflected there acknowledges that dualism is in play, and that, consistently with the Government having constitutional responsibility and the ability to conduct foreign relations, it is for it to make and ratify treaties.

    So the enlargement referred to in the long title is achieved by Her Majesty's Government in the usual way, signing and ratifying the treaty of accession, and you have that if you need it in authorities 13, tab 141, page 4658.

    So this statute uses and is premised on dualism and on the constitutional roles of Government and Parliament sitting alongside each other. So everything in part one is about giving domestic legal effects to acts taken in the exercise of prerogative powers on the international plane. That is what part one is about. That is what it does.

    Its fundamental nature is focused not on actions on the international plane at all, but on the distinct aspect of domestic transposition and the creation of domestic -- the recognition of domestic legal effects.

    We do submit that the divisional court was inaccurate to conclude that the Government could not have ratified the treaty of accession, unless and until the ECA was enacted.

  • It would have been in breach of a large number of principles of EU law if they had not done so.

  • Because there was no domestic transposition.

  • Exactly, that is the sense in which they suggest that they had to do it, isn't it?

  • My Lord may be right; I thought they were making the rather broader point --

  • You couldn't even assume (Inaudible) on an international plane, is your submission.

  • Quite, and my submission is we plainly could; that is the way in which it was going to be done, and that is entirely clear, that that power was still left with the Government, because when Parliament truly wants to impose limits -- well, making the point in two ways, when it wants to give permission to do something on the international plane, it is perfectly capable of saying: I am giving you permission to do this; a bit like the Bahamas and Barbados situation, creating the legal effect in that way.

    But if it wants to restrict action on the international plane like ratification, again, we know that Parliament can do that, and we know it has done that, and we saw CRAG. Then it has a whole series of decisions it would have to make around what type of parliamentary permission should be given and how -- where the balance should lie between the Government on the one hand and parliamentary control on the other.

    We know as a matter of fact, if you go back to the 1972 Act and you see the date on which it was enacted of 17 October 1972, we know that the UK instrument of ratification was in fact deposited the day after it was enacted, in other words on 18 October 1972, but that, we respectfully submit, tells you nothing about whether or not the ECA was some kind of legal pre-condition to ratification. We submit plainly not; there is nothing to authorise ratification in the ECA; how otherwise could we have committed the United Kingdom on the international plane, other than by way of the exercise of the prerogative?

  • No authorisation and no "for [comma], and in connection with", only "in connection with"?

  • Of course it avoids -- as my Lord, Lord Sumption pointed out, doing it in this sequence avoids potential breach of international obligations, because you have not got the domestic transposition that is required.

    So we respectfully do not accept that there was any need for any of that.

    Moreover, that is the ECA, the 1972 Act does not require the UK to become or indeed remain a member of the EEC, can be demonstrated perhaps by asking what the position would have been if the Government had not ratified the treaty of accession, shortly after the ECA came into force, or indeed at all; as was the case with Norway which signed but did not ratify. The treaty of accession itself set the date for our membership, if ratified, at 1 January 1973.

    Of course it is not a breach of international law to answer the question posed. It is not a breach of international law to sign a treaty but then not to ratify it; that is precisely what Norway did. The logic of the respondents' argument is that the Government would have been in breach of the ECA, and that plainly was not the case. Parliament was therefore merely facilitating the membership, should the Government, in the exercise of its treaty prerogative, take the United Kingdom into the EEC.

  • This is potentially a Fire Brigades Union case, I think it is suggested, against you in that context. You might test your proposition or put your question in a slightly more sophisticated way, by asking what if the Government had announced immediately after the passing of the ECA that it would never ratify the treaty of accession; you would give the same answer, I appreciate, you would say that is their choice.

  • That is their choice, and as fundamentally or more fundamentally perhaps, this is the basic structure of this Act.

  • Why wouldn't that be potentially an abuse of power --

  • It could be. One could have that argument, the same as the 2015 Act we were discussing earlier. You could see a claim being mounted of that kind, but the answer my Lord gives on my behalf, as it were, is one we would give.

  • How do you distinguish Fire Brigades Union in this context?

  • We respectfully submit that that requires an understanding of how this Act is designed to be set up. It is not, as it were, imposing on the Government a duty, otherwise it could easily have said so. It is simply facilitating, and it sits alongside the recognition that the Government exercises prerogative powers on the international plane in that way and always has done.

  • Exactly what submission are you making on the basis of these statutes? Are you saying that if the Government lacks a suitable prerogative power before 2008, the 2008, 2010, and 2011 Acts implicitly created one, presumably not?

  • Now, in that case, surely we have to look at what the position was before these statutes, and if the position was that the Government did not have the power then, the statutes do not help us one way or the other to decide the present issue.

  • My Lord, I think that is tolerably close to the question you asked me before the short adjournment, which is: are we starting in the right place before we get to any of this legislative scheme?

  • It is another possible instance of your starting perhaps in the wrong place.

  • Quite. That was the point I believe you were putting to me before the short adjournment, but my answer to that is that these prerogative powers to exercise international relations powers, to ratify, to negotiate, to agree, to withdraw from treaties, they have always been expressed as general prerogative powers, as it were. They have never been defined by potential impact on rights in that way.

    So they have been expressed as general prerogative powers, and they have then been regulated by Parliament in a variety of ways. So you have all the various examples which we will come to, you have seen CRAG already; and in the treaties sphere, we know that Parliament has regulated those otherwise generally expressed powers very specifically. So the nature and content of that prerogative from the beginning has been a general prerogative power to do these various things, and it is then characterised by different forms of impingement into those generally expressed powers by Parliament, none of which, it may be said, have been defined or set by reference to a potential effect on rights.

    We know that the exercises of the prerogative in this sphere, and I will come back to this because I am going to have to develop this principally in answer to is there a background constitutional principle, of the kind the provisional court identified, we know that prerogative powers can be and are exercised to have serious impacts, potentially, sometimes, into domestic law rights.

    The 1972 Act, as I will develop in a moment, is a paradigm example but we have, and I will develop this, a similar position created when we left EFTA, before we joined the EEC, so we have an example in this Act of that sort of process happening, and we know that double taxation treaties similarly, but I will come back probably to all of that tomorrow now but those matters are all there.

    It does therefore depend fundamentally on analysing what -- we entirely agree, what the nature of the prerogative is, if the prerogative starts as generally expressed, which is our case, and is then impinged upon, then that is the correct starting point. The correct question becomes what species of control, what forms of control has Parliament chosen to impose upon this exercise; and we know that in relation to leaving, for example, the EU, the only way in which that can be done is by way of exercise of the prerogative.

  • Mr Eadie, you have shown very convincingly that our entry into the EU was a joint effort, the exercise of prerogative power by the executive and the exercise of legislative power by Parliament. So, put very simply, one of the arguments that you will have to deal with is, if our accession was the result of joint effort, should our departure not equally be so.

  • My Lord, the submission I make is that the joint effort, as it were, in the 1972 Act is a joint effort in the sense that it assumes that all the prerogative powers continue to exist and be operated. So all that this is doing, this Act, is not to -- put it in the positive: this Act is designed, and that is all that part 1 does, to deal with transposition.

    It doesn't authorise, it doesn't purport to be a joint effort in relation to the going in. It simply assumes and is premised on the continued existence of that power, and withdrawal, therefore, is entirely consistent, to put it in my Lord's helpful way, is entirely consistent with that framework. Because when you withdraw, you withdraw on that basis. You withdraw in exercising the prerogative powers that sit in parallel to and are the premise for the 1972 Act.

  • I see the force of that but it is not quite an answer to Lord Wilson's question, is it, because the way the treaty was signed and then not ratified until Parliament had done its bit in passing the 1972 Act meant that it was very much of a joint effort, to use Lord Wilson's expression, whereas on your analysis, pulling out would not be a joint exercise.

  • Pulling out would not be a joint effort.

  • But the fact that it is ratified the day after this Act is enacted, for the reasons I have given, is significant only because it avoids, as it were, the Government being in breach of its international obligations once it decides to go in. That is the true significance of it. That is what it has done.

    As I say, when we get to EFTA, I don't want to get too far ahead, because EFTA is quite complicated and we will try to simplify it overnight, but we get to EFTA and you see that that is how they do it there, as it were. They leave in the exercise of the prerogative and then some time later Parliament comes in but I will show you that tomorrow. But of course it depends, I suppose, how one defines joint effort, but joint effort there undoubtedly was, but only because in part 1, they are transposing, they are giving domestic legal effect to the rights that are created on the international plane.

  • As a result of a joint effort between Parliament on the one hand and Government on the other.

  • That is the answer my Lord, Lord Wilson has put to me.

  • What is the answer to it?

  • The joint effort involves assuming, and this whole Act is premised on, the prerogative powers continuing to exist. This does not purport to authorise us to ratify. It would not place us in breach if we didn't ratify. It simply says, once on the international plane, you have entered into the treaty, which was signed some time before, once you have ratified, then these are going to be the domestic legal effects.

  • Your argument really is you needed a joint effort to go in in order to get the powers transferred to the (Inaudible) UK, but you don't need it to come out.

  • We don't need it to come out, because we can withdraw, and again, I don't want to get too political about it, but if joint effort is what is required, then joint effort you have. Parliament decided to set up the referendum. To ask the very question -- again I don't want to get too far ahead of myself because I am going to come to the 2015 Act in due course, and it does not precisely deal with the legal point that my Lord is making but there is, as it were, constitutionally the joint effort that is provided by that.

    But I think my fundamental legal answer to the point my Lord puts to me is this Act is not saying, it doesn't say in section 1: thank you very much, you are now authorised to ratify; PS, section 2, here is the effect in terms of transposition into domestic law.

  • Isn't this to some extent, because we are just looking at 17 and 18 October 1972, and if you look back at the history, before the treaty of accession was ever negotiated or signed, both Houses considered the matter, and in October a year before, 1971, they separately resolved that:

    "This House approves Her Majesty's Government's decision of principle to join the European Communities on the basis of the arrangements which have been negotiated."

    Possibly not even that is the starting point, but that is a relevant starting point when you consider this statute. They are hardly going to repeat anything like that in the statute, because it is a given. What they are doing is taking the final step to implement quite major changes in rights and obligations domestically. On your analysis, Parliament is effectively prepared, isn't it, to do whatever the Government decides without actually expressing a view itself. Is that realistic?

  • The significance of those motions is one, they are not primary legislation.

  • They are not primary legislative authority, and you do not remove or abrogate the prerogative by passing a motion of that kind in Parliament anyway.

  • But they are background, aren't they? That is what the 1972 Act is doing.

  • They are background but the true significance of that, my Lord is right to draw attention to the fact of it, the true significance of that, it might be thought, is that there are myriad ways in which Parliament, if I use the word neutrally, politically, as it were, can exercise control and give consent, can recognise the significance of an issue.

    So what is not being done is to say: we need primary legislative authority for you to go and ratify this treaty. This Act is not in any shape or form that sort of beast. My Lord is right to say there were some motions beforehand, but all that demonstrates is that under our constitution, there is flexibility as to how Parliament chooses to get engaged in a particular issue, what steps it wishes to set out beforehand, what matters it wants to debate and how it wants to go about doing that.

    The true parallel, if there is one, once you recognise that it is not primary legislative authority to do the thing on the international plane, the true parallel between the motions that you identify and the present situation involving withdrawal is that here we had the referendum, and Parliament got involved beforehand to set up the referendum, to ask the very question: should we leave?

    So as a matter of law, I quite understand why my Lord, Lord Wilson asked the question that he does, and I have given the answer that I have -- I have tried on a couple of occasions to give the answer that I have to that question, but in answer to my Lord, Lord Mance, yes, there may be significance to that in the sense that it continues to be a joint effort in a broad sense, because Parliament has chosen to get involved. But nothing in those motions by the Houses of Parliament suggest that it was a legal precondition, otherwise it would have been legislation or a legal authorisation. It was simply Parliament expressing its view that this was an appropriate thing to do in the exercise of the prerogative, and the parallel therefore with the 2015 Act is exact.

  • That was an exercise of the Ponsonby convention, wasn't it?

  • That was an exercise that was pre-CRAG effectively.

  • Which, as you say, does not apply to withdrawal. The thing that is puzzling me in relation to Lord Wilson's question is that you, in your case, make something of the fact that there will be parliamentary involvement, once the Article 50 notice has been served, and indeed there is something called the Great Repeal Bill, which the Attorney General mentioned. Do we have any evidence about that.

  • About the Great Repeal Bill?

  • Yes, about what it is, what it is going to do. It seems to be of some relevance to ask ourselves: what actually is Parliament's role going to be between now and the end of the (Inaudible) period.

  • Yes, I am sure we do and we will find -- I think currently there has simply been a statement by Government about what is intended to be covered by the --

  • I think there has been a statement at the Conservative party conference; has there been anything else?

  • Pass. We will double check and get you anything else there has been on that. I think there is no more than that at the moment. I don't think there is a White Paper or anything of that kind.

  • Can we just go back to this point about the 2015 Act. In a way, I suppose, you would say it fits in with the argument that says that if you are right, the day after the treaty had been ratified, on your argument, the Government could have had a change of heart and pulled out. The idea of a partnership with Parliament is that in practice, that would never have happened without either Parliament approving or without the 2015 Act which you say, although not as a matter of strict law, was in practice, Parliament's involvement.

  • My Lord, yes, and I have hesitated to go back in this case to the quote that you may have seen in our annex from Lord Bingham in the Robinson case about the fluidity of the constitution. I do not rely upon that because we respectfully submit the position is entirely clear in terms of the existence of the prerogative and how this legislation as a matter of strict law is set up, which is the case that I have to meet. But we do submit that there is real significance in the various and myriad ways in which that partnership, that joint effort, if you will, can operate.

    It can operate by way of motions, it can operate in the CRAG sense, it could operate in the Ponsonby memorandum sense that preceded CRAG. Or, as significantly, it can operate because Parliament chooses to produce in primary legislation a referendum, and we know when we come to it, 2011 did that in various different respects, in the 2011 Act, and the 2015 Act the same.

    The difficulty is drawing, as it were, the straight constitutional line.

  • Because the UK constitution, such that it exists, is not a straight line.

    Now, we have not got past the long title because of questions from us. Perhaps we should be moving on from the long title.

  • Yes, it is the long title and what part 1 does. I don't want to rest too much on the long title, because the long title, we know, is a beast of limited assistance in terms of interpreting, or it can be a beast of limited assistance in terms of interpreting, but it is fundamentally what the operative provisions in part 1 are doing, which are all about transposition and not about regulating international plane action.

  • Yes, we have that, yes.

  • Section 1, then, steady progress, section 1 sets out the mechanisms by which treaties come to be approved and put on the list. The significance of section 1 is that the divisional court thought that that was a strong indicator that the treaty prerogative generally, including withdrawal therefore, was controlled by the ECA. But of course we submit that the restriction or any restriction on the exercise of the prerogative power to withdraw or to give Article 50 notice simply cannot be inferred from section 1 of the ECA.

    By definition, a number of points on that, by definition we submit, the ECA cannot have been intended to abrogate the Article 50 notice power for the simple reason that Article 50 was not even a gleam in someone's eye at that point, and the EEC treaties did not in terms deal with withdrawal at all, so it cannot have been designed to deal with that. But as we have already seen, the Act as a whole in 1972 imposes no restriction of any kind, still less of the sort that we see in CRAG and later piece of legislation. It imposed no restriction at all on action or treaty making or anything else to do with treaties on the international plane. It didn't authorise us to become a member or to ratify.

    And so we could have, until at least 1978, the next Act I am going to come to, when there was an express restriction introduced into the EU context for the first time, we could have negotiated, agreed and ratified new treaties, and hence bound the UK to those treaties under international law without the prior authorisation of Parliament.

    That is not, of course, to say there would not be all sorts of very good practical and political reasons for wanting the prior approval of Parliament, but that is a different matter. That broadens the concept of joint venture, as it were, even though the line may not be straight.

    So this is all about the imposition of restrictions and giving effect at the level of transposition into domestic law, and so we do submit that standard dualist practice of which this Act is a paradigm example, standard dualist practice simply indicates that there is a need to provide for a mechanism of transposition.

    That is what this Act does. Once one recognises that as the fundamental nature of it, it becomes entirely clear that it is not to do with or seeking to control the exercise of prerogative powers on the international plane.

    So you have the mechanism that you see in section 1(1), and section 1(2), with its references to listed treaties, and indeed to ancillary treaties. And then there are mechanisms for introducing new treaties on to that list in 1(3). In the manner that -- there has been some debate in the past around whether or not 1(3) would operate as the legislative mechanism for simply ancillary treaties or other treaties to come. I think the position the court arrived at in Smedley was it applied to the ancillary treaties only.

    Certainly the position is that subsequently, when treaties have been added to the list, that has been done by primary legislation, but as we see, that may be explained by the fact that specific introduction -- there was specific introduction from the 1978 Act onwards, to require primary legislation whenever the powers of the European Parliament were being expanded, so that might explain why that happened.

    It may be at least not entirely easy to say, to see, why as a matter of ordinary construction at least, section 1(3) might not be taken as authorising both types of treaty addition, both ancillary and listed.

  • Which was the case you said that treated it?

  • Smedley, I think it is.

  • Yes. As a matter of pure interpretation, it is coming at the thing as a matter of straight interpretation, there is at least a question there.

    But Smedley appears to have resolved it for the time being.

    Then we come to section 2. And the first point to make in relation to -- sorry, my Lady, I am going to try and speed up a bit, but section 2 you will all have read. The first point to make about it is that it created the conduit.

  • It is the first of four relevant points we want to make on section 2. It creates the conduit. Consistently with dualism, it needed to do so given that the treaties took effect and created rights and obligations only on the international plane, and in that way Parliament, consistently with dualism, enabled the United Kingdom to comply with its international/EU law obligations.

  • The nature of the conduit as we see from 2(1), the transposition model if you will, was direct and automatic. And what that means is that the rights and the obligations that were created on day 1 could be altered, and could be removed by action taken under the prerogative by the Crown.

    Section 2 simply sets out the basis of transposition, necessary for all the reasons I have given, but the significance of it doing that and of that being its nature is that the introduction of a conduit or a transposition model of this kind tells one nothing about the discrete issue of some form of parliamentary control of Government action later on the international plane. It simply is creating the necessary transposition mechanism.

  • The divisional court attached some significance to the title alongside section 2 and we have dealt with that in the annex to our case where we track, as it were, the textual analysis of the divisional court and answer them paragraph by paragraph. I am not going to spend a lot of time on that now, but it might be thought in relation to the heading, the fact of the matter is that that heading is accurate and descriptive and adequate to give a general summary as to what the section is doing.

    It suggests, if anything, accurately, that section 2 is, as it were, a consequence of dualism, but it doesn't do more than that. It doesn't carry some form of implementation, that because this is about general implementation of the treaties, that means the treaties must always stay the same or cannot be withdrawn from.

    Indeed, we know, when we come to it later as I will do shortly, that when Article 50 does become part of the EU framework in the Lisbon treaty, it is then added to the list in section 1(2), and Article 50 is thereby given effect, as it were; so that these rights and liabilities exist subject to that, but the general title, we submit, the general heading, does not avail one.

  • Does that involve the proposition that Article 50 is incorporated in domestic law?

  • It has become part of the listed treaties.

  • But is it incorporated into domestic law by this Act?

  • My Lord it is not incorporated by this act, it is not?

  • I don't make that suggestion.

  • No. Because it only operates on an international plane.

  • It is not directly effective, it operates on the international plane, but it indicates that the rights and liabilities as they exist from time to time are subject on the international plane to that power of withdrawal.

  • This phrase "from time to time" that we read twice, "rights from time to time created", "remedies from time to time provided for", is that simply talking about changes in European law, changes from time to time in European law, or do you say that the phrase also encompasses rights being changed and remedies being no longer provided for as a result of withdrawal from the EU?

  • My Lord, I respectfully submit that it is a recognition that -- and I will come to develop this point -- the rights that are created are inherently susceptible to change.

  • Change at the EU level, principally by exercise of Government action.

  • (Inaudible comment, off microphone).

  • (Inaudible) the common law, you have (Inaudible) institutions.

  • Yes, and my Lord used the word "recognition" which we respectfully agree with, rather than, as it were, creation, so as to create an analogue with other domestic statutory rights, but it is recognising exactly that.

  • I think the point that is being put to you is that this may be concerned solely with variations in the content of EU law and not with the possibility of withdrawal from the whole scheme of EU law.

  • My Lord, that is right in terms, but it doesn't touch, we respectfully submit, our power to withdraw which continues to exist under the prerogative, is the way we put it.

  • (Inaudible) ambulatory, as far as you advance it.

  • I am not sure it does weaken it, with respect. The way we put the argument is that we have always had the prerogative powers existing. What this does demonstrate most clearly is that by exercise of prerogative power, the Government can affect rights, can withdraw rights, can remove rights in any event. It could remove 99.9 per cent of the rights entirely consistently with 2(2).

  • You say by an exercise of the prerogative power. The likelihood of the Council of Ministers and now the European Parliament agreeing to remove 99 per cent of EU rights is rather remote, isn't it?

  • My Lord, it may be rather remote in practice but as a matter of law.

  • It is certainly not done by the unilateral exercise of the UK prerogative.

  • No, and I have made the point already, that it is not only our prerogative powers that are in play.

  • I think the issue we are trying to focus on is whether you rely for your purposes in this appeal on the words "from time to time".

  • Because it demonstrates that rights can be affected directly by the exercise of Government power on the international plane.

  • But there is a huge difference between submitting to the rulings of a club committee as to what the club rules are, the dress code or whatever, if you happen to be a member of a club, and not being a member of the club at all, either being expelled or giving notice. Isn't that the point that is being put to you rather?

  • My Lord, it is a scale point, therefore. We can affect domestic legal rights and obligations in this way through exercise, albeit not on our own because there are other EU actors in play, we can affect domestic rights in this way, by exercising our prerogative powers on the international plane.

  • Do you say those words really just apply to changes in, as it were, EU rules?

  • They apply to changes in the corpus of EU law, but what that illustrates is that the powers that exist under the prerogative to engage with Europe in that way to achieve that domestic legal effect continue to inure. Of course I accept that there is a difference in the scale at least between the withdrawal, a leaving of the club and a voting about whether or not you should wear a tie in the dining room.

  • This is not really a major point in your argument, though.

  • It is a major point -- two major points, one is that this is a conduit, and a necessary conduit and therefore --

  • This emphasises it is a conduit through which water is going to keep on passing.

  • Yes, and therefore you do not imply anything about control over exercise of prerogative power on the international plane, because this is simply a conduit; and the second is that the rights and obligations under this provision created into domestic law once transposed, are capable of being affected, including removed from time to time, by actions which are at least in part dependent with(?) other actors, on the exercise of prerogative powers.

  • It may be that the answer to these questions is different as you construe the Act with the additions made in 2008 by comparison with what it would have been before. Although Article 50 only operates on the plane of international law, from 2008 onwards, it was plain that if the object of section 2 was to ensure that the domestic law obligations were no wider than the international law obligations, that included withdrawal after 2008.

  • Everyone knew they could leave, my Lord, yes.

    There is quite a fundamental significance to section 2, which is that, as you will recall, the divisional court's judgment is fundamentally premised on the idea that you cannot affect through the exercise of a prerogative, you simply cannot do it. That is the background constitutional principle, you cannot affect rights in domestic law and here we know you can. The rights can be affected, they can be altered, they can be amended, they can be removed.

  • It is not just a question of scale, as it seems to me at the moment. The difficulty you have to face up to, I think, is that what is envisaged is not merely the size of the stream, as it were, coming down the conduit may vary from time to time, and what precisely its composition is varies from time to time, but you are envisaging making the conduit completely redundant by the sound of things.

  • My Lord, if you withdraw, that is the effect.

  • That is different in nature, one might argue, from merely a change in the composition or the quality of the water that is flowing down the conduit.

  • My Lord, I accept -- I am not sure much is going to turn on whether we characterise it as a difference of nature or a difference of scale, it is the same point: is there a distinction between withdrawal, complete removal of these rights, and not? That has to be approached in sequence, as it were. The first point is, we know from this, because it is precisely the essence of it, that the Government can destroy rights, to use the emotive phrase that litters the other side's cases, we know they can do that; that is the very essence of this model.

  • When you say we know they can do it, just explain in what way do you say that the Government can destroy --

  • Because they can operate on the international plane in the context of the EU to agree to various forms of directly affected measure, regulations, matters of that kind, and the consequence of that may well be that the rights that exist on day one either are altered on day two or cease to exist on day two.

  • They certainly have no right to do it; they may be unfloated(?) in many contexts.

  • They may be. All of that is true, but it all depends upon the Government being able to act within that partnership, if that is the right way of looking at it, on the EU plane.

  • That is what is contemplated by this Act, that the Government will, under the EU law-making institutions, play its part and that may lead to changes in one direction or another. I think the question is whether what is contemplated by this section also includes withdrawal from the treaties.

  • Surely dealing with the argument --

  • Let him answer the question.

  • My Lord, there are undoubtedly differences between withdrawal entirely and the affecting of the corpus of rights from time to time, but what it illustrates is that the Government can remove rights under this basis, and that fundamentally, we respectfully submit, causes a problem for the reasoning and analysis of the divisional court. When you come to ask the bigger question, does this contemplate withdrawal, my submission is that it contemplates and is premised upon all of the Government's prerogative powers on the international plane continuing to exist.

    That is the fundamental premise on which this sits. I am going to come to develop the submission in a second, but what that means is that the rights that are conferred into domestic law by this section are inherently limited. They are inherently limited by the ability to act in concert with others on the international plane, under the EU auspices and all the various ways that they make and create rights and obligations from time to time; and it is inherently limited because at a much more fundamental level, all of this is premised on the continued existence of that basic relationship.

  • Can I put my point. I don't quite understand why we are spending so long on the 1972 Act, because I mean your main point -- you have to address the divisional court's point that it cannot affect rights at all, but your main point is that things change in 2008 --

  • 2008, 2011, and 2015.

  • -- where you for the first time get Article 50, and of course the key thing with Article 50 is the two-year automatic exit, which is a completely new feature.

  • My Lord, yes. I agree with all of that. Can I just finish the answer on scale, if I can call it that, scale/nature, and the answer, one of the answers on scale/nature is -- the twin answers are, nothing inconsistent with the continued existence of the power to withdraw in section 2, because it is premised on the prerogative powers continuing; and if you get to scale, and you take into account subsequent developments, you take into account in addition the 2015 Act.

    Now, again, the line may not be entirely straight at that point, but the fact of the matter is that it, like the rest of the legislation, subject to the controls we are about to come to, does nothing to take away or seeks to control the prerogative powers that exist, including withdrawal.

  • As I understand it, sorry to keep on about section 2, but as I understand it, if it didn't say "from time to time" in section 2, your basic point would still hold that nothing in this Act takes away the fundamental prerogative, either by necessary implication, let alone expressly, upon which you rely. All it from time to time does ultimately is merely to give a bit of support to that argument by the notion that as a result of the Government's involvement in decisions in Luxembourg or Brussels, that the laws in this country will be changed through the exercise of the prerogative, and that is really as far as it goes, is that right?

  • My Lord, that is its core significance, I entirely agree. That is its core significance, but as I say, what it does do is to demonstrate that the rights themselves -- forget about whether or not there is any implication because it doesn't deal with withdrawal expressly, of course not. So the question is what implication is to be derived from it.

  • The best implication, or the only real implication from it, we submit, is not that it controls the prerogative power which sits alongside, but that domestic legal rights that are recognised in the way set out in section 2 can be affected by the Government acting within those EU constitutions.

  • Thank you very much.

  • If the Government were to give notice -- I think that it is accepted that before section 50, the Government could have extracted the UK internationally from the European treaties.

  • If it had done so, it would have left a scene where some European Union obligations disappear, that once others remained as remnants of membership of the Community, all those which required specific domestic implementation, eg obligations to give effect to directives and so on; is that easy to contemplate in the context of section 2, which contemplates regulations and so on to implement -- it doesn't have any provision for the event of the prerogative being exercised to disimplement the treaties.

  • My Lord, yes, we respectfully submit it is consistent, because the fundamental premise for section 2 is we continue to be members and they are -- it is dealing with the transposition of the rights and obligations such as they are. The points that my Lord has been putting to me are the mechanics of exit, as it were. We are in that position now, hence eg the Great Repeal Bill that is proposed, where you put everything that used to be EU law on to the domestic statute book, and it is easier then to pull out and make policy decisions policy area by policy area.

  • You say again, Parliament's only role is simply to give effect to whatever the executive decides at the international level.

  • Exactly so, at that stage and at that base level. If one is worrying about scale, one is saying: what implications can we draw from this; you don't stop there, you wind the clock on to the point when the decision is actually being made and Parliament has at that point decided that it should submit that very question with all its implications to the people in the referendum. But there is no implication the other way, in section (Inaudible). Indeed the one thing that is clear, we respectfully submit, subject to acting with others, the point my Lord, Lord Mance made, the one thing that it is clear about 2(?), is that the things that the Government does on the international EU plane have, as it were, direct effect into our domestic law, including the removal of rights.

    I suspect the submissions I was going to make on section 2 can now be rather shorter, but can I just run through them anyway just in case.

    The next point I was going to make about section 2, the first one having been conduit, the next one was going to be that section 2 recognises rights and obligations created elsewhere and altered elsewhere, in other words on the international plane. There are therefore two necessary preconditions to the rights and obligations having effect in domestic law. (a), the general conduit that is section 2, and (b), acting under the prerogative by the Government shaping and creating, removing and altering that scheme of rights and obligations.

    So these are, as section 2 expressly recognises, rights and as section 2 puts it, created and arising by or under the treaties.

  • That is where they are created and/or they arise. Those rights are simply then, again, track back to the wording in 2(1), recognised, available in law and enforced and allowed accordingly. The creation is on the international plane. The explanation for that structure is that treaty dependent rights are not and could not be created by Parliament, depending, as they do, on international, including Government prerogative action.

    That point serves to undermine at base, we submit, the truth and force of any analogy with rights properly described as having been created in the sense of defined by Parliament on the domestic plane. Of course, rights and obligations created under the treaties, the wording used, includes all the ways in which EU law is created, so it includes regulations which have directly effective legal impact and where the Government acts representing the UK, negotiating and agreeing those sorts of measures.

    The divisional court also relied upon the concept of an enforceable Community right that you see at the end of 2(1), and they indicate that it implies, as it were, that Community rights would continue. We respectfully respond that the wording and the concept, that definition, was necessary for the structure which transposes rights created on the international plane, as is recognised in that section, and it implies no continuation of those rights.

    That is the second of the points, as it were, so conduit and rights and obligations, secondly created elsewhere and altered elsewhere. And flowing from that, the third point perhaps on 2 is that those rights are in nature inherently limited or contingent as already indicated.

    What that does, once you recognise that they are inherently limited or contingent, is that it serves to undermine, we submit, any statement of principle that is expressed too generally, or that it is taken from one context, where it may remain true, and transplanted into a different context; in other words, if you take the statements in particular, and I will come back to this when I dial deal directly with the point, take the statements from Lord Oliver about self-executing treaties and prerogative not being capable of being used to alter the law of the land; but we know under this model it can do precisely that.

    It also strikes fundamentally at the proposition that the giving of notice or withdrawal is in some way, shape or form to be regarded as constitutionally objectionable, because the effect would be to remove rights currently enjoyed under the ECA. So ultimately it would, but that is the essence of the rights created by the ECA anyway; they are inherently limited, inherently dependent upon and contingent upon actions occurring on the international plane.

  • So one can analyse it, as I think Lord Millett does in his article, on the basis that the withdrawal from the EU and the giving of notice by the Government will simply cause those rights to which the ECA gives life in domestic law to expire in the way envisaged by the 1972 Act and in accordance with their terms. It is not therefore accurate to describe the process of withdrawal, the starting of that process, as, in any real sense, revoking or overriding statutory rights.

  • You say that Lord Millett's analysis is correct?

  • We do, and we respectfully adopt it and at a more fundamental level, it is a point I made already, at a more fundamental level, we submit that this recognition of their inherently limited nature, their contingent nature indicates that all of the rights and obligations to which section 2 gives effect are dependent upon the continued relationship between the UK and the EU.

    There is no need to imply anything into section 2 for that to be accurate; it is simply inherent in the very nature of the rights and obligations that section 2 creates.

  • You did give us the reference to Lord Millett's paper before. Can you remind us where it is.

  • It is inherently dependent, not merely upon action from time to time, but upon more fundamentally the continuation of that basic relationship.

  • It depends upon the maintenance of that relationship. The club's rules apply and the right to elect people to its institutions, for example, are dependent upon the continued membership of the club.

  • It is also to be noted in relation to section 2 that its effect is expressly limited to giving effect to treaty rights and obligations in the UK. It gives effect to rights and obligations which are, as it says, without further enactments to be given legal effect or used in the UK. It doesn't, therefore, give effect to treaty rights which are enforceable in or against other member states. It doesn't create a right of a British citizen to live in France, because it couldn't possibly do that. We could not legislate for their ability to live in France. That would be a matter for France to regulate.

    What that indicates is that the ECA only intended to regulate the treaties in the UK and didn't have the wider purpose of authorising entry into the treaties, or creating or guaranteeing the full range of rights arising under the treaties.

    It is a much more limited purpose. That is section 2.

    Section 3, which deals with the creation in relation to section 3 -- sorry, I am just focusing on the points, trying to focus on the points that the divisional court made about section 3, and we have dealt with that in our annex at paragraph 5(7) -- I don't repeat that. It no doubt does assume the existence of issues of EU law which the CJEU can deal with, but it doesn't imply or state that the rights and obligations under EU law continue to exist. It tells one nothing other than, for as long as we are members of the EU, then there needs to be an institution which resolves issues about rights.

    So those are the core provisions of the 1972 Act and just before going to the remainder of the sequence, as it were, there is a question which hangs over the remainder of the EU-based legislation here, which is that if the 1972 Act had the effect of removing prerogative powers to act in a variety of ways in relation to the EU law structures, if that was, as it were, removed or taken away by implication, then it is jolly difficult, it might be thought, to see what the later legislation is doing, with its nuanced scheme of control over that very thing.

  • Isn't the point put against you on that that it is dealing or addressing -- dealing with or addressing increases in European competences rather than diminution?

  • It is in part doing that, but we will see when we get to the scheme of control, that it is actually imposing a whole raft of controls in this entire area. That is maybe the fundamental political driver for some of it, the ever increasing expansion of EU law, but that is a matter of law. It is pretty much a specific aspect of the point I have already made in relation to CRAG. It is Parliament's considered decision-making as to what controls it wishes to impose in this context.

    The first of the later pieces of legislation is in the same core volume, but you jump forwards to tab 112, so it is core volume 1, tab 112.

  • It is the 1978 Act.

  • This is an important step, we submit, because for the first time, Parliament decides to control an aspect of the treaty prerogative; in other words it decides to control how the Government is able to act on the international plane, and it does so expressly. If you go to page 4219, section 6 required primary legislation to be passed before any treaty increasing the powers of the European Parliament could be ratified. So that was an express and a specific and limited control of the treaty prerogative. Parliament decides what element of the treaty prerogative it wants to limit and it chose the ratification of particular treaties and it chose the form of control of primary legislation.

    If the treaty prerogative has been excluded, then this limited form of control -- this very specific form of control becomes difficult indeed to explain. That had two important consequences. The first, and for the first time, the Crown is no longer free to exercise the treaty prerogative however it chose. This precedes CRAG by some years, you will recall. It could not any longer agree and ratify without prior reference to Parliament in this specific context.

    The second --

  • It could agree, it couldn't ratify, is that right?

  • It could agree, it couldn't ratify, exactly.

  • Secondly, it explains the subsequent chronology of parliamentary involvement. After this Act Parliament always passed implementing legislation for the major new EU treaties before and not after they were ratified, but the reason for that is because section 6 meant that Parliament had imposed itself into the process.

  • That is the 1978 Act.

  • Then there is 2002, which is in -- it is actually in the supplemental bundle, the little black 11 KBW bundle. It was omitted because it was replaced in the 2011 Act. Just so you see the sequence, it is tab 4.

  • Yes, thank you. And that is similar to section 6.

  • Virtually identical. It was re-enacted in section 12 of the 2002 Act, but of course the significance of it, the added significance potentially is that the 1978 act was in 1978 and we are now in 2002. Yes, the assembly had become a Parliament but time period is of interest because Parliament has now seen numerous major treaty revisions, negotiated by the Crown under its prerogative, and has chosen not to implement any further restrictions on the prerogative treaty power. This simply replicates section 6 originally passed with slightly different language in 1978.

    So that is the 2002 Act. Back to core volume 1, if you would, and tab 3. This is the European Union (Amendment) Act of 2008, MS 117. It incorporated Lisbon. The features perhaps to note are these. In section 5 on MS 119, it altered the position we have just seen in section 12 of the 2002 Act, expanding the circumstances in which primary legislation was required before ratification of any amendment to the founding treaties made by ordinary revision procedure.

  • So there is an example of primary legislation, primary legislative authority being required by express provision.

    But note in relation to a very specific matter. This piece of legislation also had to consider and deal with Article 50. Article 50, we know did not pass unnoticed. If you could keep that open but briefly go to authorities bundle 30, tab 402, those are the explanatory notes.

  • What is the MS number?

  • Thank you. And you see that it didn't pass unnoticed, Article 50, because if you look on 10346, just above the bullets in paragraph 5, the principal changes made by the treaty are as follows, so principal changes made by the treaty, over the page, 10347, fourth bullet down.

    Of course, just by way of note, that was, and you can put that bundle away, that was -- that, Article 50, was a provision that increased the powers of the European Parliament because they had to be involved in the Article 50 process, and so Parliament had to grant specific consent inter alia for that reason. That explains the content, if you go back to page 119 in volume 1, that we have just been looking at into the 2008 Act, that explains the content of section 4. So the 2008 Act adds Lisbon to the list of now renamed EU treaties designated by the ECA and the effect is that Parliament is acknowledging that the other rights and obligations under other parts of the EU treaties, and we have touched on this point before in debate, were now subject to the exercise of the Article 50 withdrawal right.

    So the idea that they could thereafter be regarded as set in stone or permanent cannot be maintained after that.

  • The increase in powers of the European Parliament related to a whole range of things.

  • It did, that is why I said inter alia, but my Lord is right. This is one of them, because you will remember the European Parliament had some involvement in the Article 50 process. So that is the second of the bits of significance as it were. We have gone from 5 back to 4, and then we go forward to section 6, page 120. This is significant because for the first time, Parliament passes in section 6 a series of parliamentary controls over decisions ministers took under various parts and processes of the treaties.

    So this is not control over entering into new treaties or ratifying new treaties; this is about the performance by the Government of its functions under the treaties, prerogative powers being exercised therefore.

  • The list is set out in section 6(1) and applied both to the TEU and the TFEU, and the terms of section 6(1) are restrictive. The minister of the Crown cannot exercise the prerogative power of the Crown in respect of specific enumerated decisions, but they are enumerated, the controls are nuanced; and they are not merely identified, as it were, the specific things that now need some form of parliamentary authorisation, but the mechanism of control is itself nuanced.

    You see that the species of control that this section provides for in section 6(2) is parliamentary approval of motions. So you have got within the same Act, the various decisions that we say Parliament would be expected to make if it entered into the territory of trying to control the Government's prerogative powers in the way that it saw fit.

    We have the requirements carried over from the previous legislation for primary legislative authority in some contexts, see section 5, and now we have got a different species of parliamentary control, this time motions, and approval of motions in section 6(2).

  • Is it in fact that different? As I understand it, the 2008 Act extended to a large number of species of decisions, because the Lisbon treaty had created a number of procedures for modifying the operation of the treaty, which would previously have required a new treaty, but under the terms of in particular article 48, but there are also other articles, it could be done by inter-governmental agreement internally.

    So effectively, what section 6 is doing is simply carrying out the policy of section 5, but applying it to a wider range of decisions which had a similar effect.

  • And introducing a different mechanism for parliamentary control. It doesn't have to be primary legislative like section 5; it can now be by a motion and agreeing to a motion, but my Lord is right.

  • The reason for that difference is presumably that the treaty, having been included in the definition of treaties under the 1972 Act, would otherwise simply have automatically have carried any changes through into English domestic law, so you didn't need primary legislation, resolution (Inaudible).

  • Well, I am sure that is right, but whether that is right or not, you have still got Parliament thinking about what mechanisms of control it wants to introduce, and deciding that it is going to do it in this nuanced way. What the explanation, the base explanation for that might be, I am sure my Lord is right about that, the basic structure of it and how it all worked and so on, but the fact of the matter is you have in this legislation, consideration of particular types of decision, which one should be subjected to any form of control, and you have decisions about what species of control, what mechanisms of parliamentary control are appropriate, demonstrating, we respectfully submit, the fluidity with which that issue is approached.

  • These are all procedures under which the competences of the institutions of the EU could be increased or would be increased.

  • Or the voting system.

  • Yes, either that you could have qualified majority voting and so on, simplified revision procedure, they are all procedures which would lead to a expansion of the legislative capacity or activity.

  • True. True. But you have my points about the significance of it, despite the truth of that statement.

  • The key point is the obvious, but, we respectfully submit, thoroughly important one, when you are trying to assess parliamentary intention, against this backdrop, a series of decisions, forced however, based on whatever policy considerations, legislative policy considerations Parliament saw fit to feed into the way in which this Act was structured. You have primary legislative rule, you have a different form of parliamentary approval, you have specific types of decision being subjected to either or both of those features, and you don't have anything at all in relation to Article 50. Which did not pass unnoticed. Because it was one of the principal changes introduced by Lisbon, so they are looking --

  • You have drawn us to Parliament's attention in the notes you took us to. Yes, we have that.

  • You are looking at the very power which is now to be exercised and you are looking at a piece of legislation which represents Parliament's considered response to the forms of control it wants to exercise, in relation to the new powers introduced by Lisbon, and Article 50 is not one of them.

  • I mean, we pose one question, what species of control would Parliament have decided in 2008 it wished to subject Article 50 to? Section 5 or section 6? If there is not a good answer to that question, then it perfectly illustrates that Parliament's intention was to leave Article 50 well alone. It cannot be said it didn't realise it was there. It specifically identified it in the explanatory notes and said: here it is, it is one of the principal changes that has been introduced.

  • I understand, thank you.

  • Just to finish on section 6, section 6(1)(a), you will note, which precludes a minister voting in favour of a measure under Article 48(6) of the TEU, the simplified revision procedure, and that procedure allowed the European Council to adopt a decision amending all or part of the provisions of part 3 of TFEU, and part 3 of the TFEU includes the provisions on free movement.

    No need for a treaty amendment before -- a new treaty before amendment under this procedure; that plainly would alter the content or existence of the rights given under section 2(1) of the ECA, but on their case, the respondents' case, you could not do that without an Act of Parliament. How does that square with section 6 and its requirement not for primary legislation before a change is made to free movement rights, but simply a motion of each House. On their case, that would be a constitutionally retrograde and inexplicable step, and again, unless there is a good answer to that, their whole thesis becomes difficult to maintain, we submit.

    That is 2008. 2011, tab 6 in the same bundle, page 136 in the MS numbering, and again, it is in the same vein; section 6 of the 2008 Act and section 12 of the 2002 Act were repealed and replaced in the 2011 Act. That is 14(3), I think. This piece of legislation represents again a clear exercise of parliamentary control and precise parliamentary consideration of the very question: where should the proper division lie in relation to matters to do with EU law, between the prerogative on the one hand and parliamentary control on the other? What are the nature and types of control that are to be imposed, how is it all to work, how is that relationship to work?

    We know it started in the 1972 Act with the twin track, the prerogative continues, and so on. Now we have Parliament saying: we see how the world is developing and now we want to exercise very specifically some controls over the exercise of your powers on the international plane, forget about transposition, we are now going to control -- we saw the process starting in 2008 -- we are now going to control the exercise of certain types of decision-making on the international plane.

  • Which section is it?

  • We have a few to come to, sections 2, 6, 7, 8, 9, 10. Just by way of summary, and I will take you to some of them in a second, the result of this legislation is, we submit, the most significant and extensive set of legislative controls of the treaty prerogative ever seen. It represents a series of detailed and focused controls by Parliament over the exercise of the prerogative under the EU treaties. Sections 2 to 10 impose a series of different sorts of control, this time from referenda for some types of decision, through primary legislation to motions of approval. It imposes those controls over a series of different types of action, pursuant to the treaties, all of which would ordinarily and otherwise have been carried out, exercising precisely prerogative powers, from agreeing a new treaty to giving particular notifications under particular articles of a treaty.

    So by way of example, section 2 makes provision that a treaty which amends the TEU or the TFEU to confer a new competence on the EU may not be ratified unless the treaty is approved by an Act of Parliament and a referendum.

  • Or the extension condition.

  • Or the extension condition. I am not going to go through the detail of it, but the detail is worked out in sections 3 and 4. But that is the first type as it were.

    Section 6, certain types of decisions of ministers exercising their treaty functions, as you see, are subjected to control by primary legislation again and referendum, including things like adopting the euro or removing border controls.

  • Including article 53, rather oddly, on page MS 155 in schedule 1, and we heard (Inaudible) a sort of recognition of Article 50, at the bottom there. Curiously you seem to need a referendum to decide to extend --

  • I am not sure quite what the explanation for that is, because one would have thought the bigger beast in the room was leaving in the first place.

  • But certainly I suppose you can say there was express recognition --

  • Of Article 50, my Lord, I am sorry, I had not picked that up, but you are right. Whatever the explanation, there it is.

    That is section 6. Section 7 deals with types of decision, again by ministers, exercising their treaty functions, and this time they are subjected to control by primary legislation, but not a referendum, and that includes strengthening the rights of EU citizens, 7(2)(a), by way of example, not weakening or removing, no control over that; it is not designed in that way, the prerogative power is not controlled in that way.

    Section 8, we are going down, as it were, in terms of level of control, but the same point remains, these are nuanced controls, this is a critical Act. Section 8, a minister of the Crown may not vote in favour of or otherwise support a decision under article 3(5)(2) of the TFEU, unless one of sections 8(3) to (5) is complied with. That may be primary legislation or motions in Parliament.

    Section 9, certain notifications provided for under the Lisbon treaties, and under article 3 of protocol 21 to the TFEU and the TEU on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, cannot be given without parliamentary approval. An approval here means motion, not legislation.

    Section 10 on the same theme. Again, motion is the mechanism, see 10(5), so the point of all of that is that Parliament has carefully selected -- these are the punch lines -- the areas it wishes to control and it has selected the ones about which it wishes to have a say. It has done so both by way of identification of the particular type of decision, and by setting a detailed, careful and varied scheme as to the mechanics of parliamentary control that it demands, and the rest, we submit, is prerogative as normal. That is the only proper inference of all of this, so the UK continues to send ministers to council meetings voting on the vast majority of the council's work without the 2011 Act applying to the body of work that they do.

  • Am I right in thinking that where these sections provided for a referendum, they also provided that the referendum -- there should be a majority.

  • But they automatically produced the relevant consequence, didn't they?

  • They did, unlike the 2015 Act which my Lord has in mind.

  • That is true.

    That is true.

    My learned friend is pointing out you are not forced to do it, you can do it as a precondition, rather than a requirement, if it does; so in other words if there is a majority, you don't have to do it, it is just a necessary precondition if you want to do it.

    The final punch line is the obvious one, that despite the fact that it knew full well that Article 50 was still in play, and despite the fact my Lord, Lord Carnwath pointed out that 50(3) is referred to in one of the schedules, in schedule 1 on page 155, there is nothing to indicate that it is purporting to restrict or control the Crown's decision-making powers under Article 50.

  • I suppose it can be said again in relation to this that these are all restrictions designed to prevent a creep in EU competence or an increase, and even the restriction relating to section -- to Article 50, paragraph 3, is designed to avoid making it more comfortable or easier for someone to leave the EU, isn't it?

  • My Lord, yes, but the two points that might be thought flow from that are firstly that irrespective, as it were, of the underlying motivation or themes linking these changes, they still represent nuanced parliamentary control in the very area; but the second and more impertinent thought might be that if that is truly the explanation, where is the problem where you are not doing that. Of course there is a different set of questions around how fundamental or grand that thing might be.

  • You may at the time, I don't know what the political thinking was at the time, but you may at the time have been happy with what you had, but not wished to extend it.

  • You now may not. All that illustrates, it might be thought, is that there may be a danger in seeking delve too far below for a common theme that is said to affect the nature of this legislation. What they have undoubtedly done is to look at the scheme of powers that the Crown or the Government previously exercised on the international plane in this sphere and said: we are going to control that, that, that, that and that, brackets, and not that; and that, we respectfully submit, is the key significance of this act.

  • Before moving to the 2015 Act, it may be worth mentioning a point which the divisional court place some reliance on, which was that in a case called Thoburn, Lord Justice Laws had described the ECA, and I think it would follow logically that he is referring, or he can be taken as referring to the entire scheme of EU legislation, as being constitutional in nature. The divisional court placed some reliance upon that, because it was thought to suggest that it would make it less likely because of that description that Parliament would have intended that the rights conferred by the ECA could be taken away by prerogative powers.

    However, in relation to that point, firstly, constitutional status in that sense entails that legislation itself is protected against implied repeal by later legislation appearing to be inconsistent with it. So that was the force of the point, that was the point that was really in issue in Thoburn, so it is a doctrine which sounds in the principles that are -- that the courts have decided should govern implied repeal, and those are, of course, common law principles discovered by the courts as a mechanism for dealing with that set of issues. It doesn't tell you anything about Parliament's intention or about the interpretation of a statutory scheme.

    It cannot therefore, we respectfully submit, be used to displace the De Keyser approach or what the scheme, read properly as a whole, tells you about parliamentary intention.

  • Mr Eadie, reading your case I wondered exactly what your position was on constitutional status. I think you have just indicated you accept that common law does now have a doctrine of constitutional status, and I think you accept that the 1972 Act is a statute of constitutional status, but then you say, so what?

  • So what. I do. We certainly have not taken issue with that description or indeed the application or the consequences of that description --

  • -- designation that Lord Justice Laws put on it in Thoburn but we do say, careful, it is about implied repeal and you cannot just say: there is a constitutional looking statute and ergo it has some enhanced status which renders it less likely that the Government could withdraw from the treaties that sit alongside.

    In any event, if you are to take that forward, so it is a doctrine that sounds in implied repeal, is the first point, but if you are taking constitutionality rather more broadly as an indication of the importance of legislation, then you don't just look at the legislation and say: that might fit that sort of description. You have to drag in all the other essential foundations of the constitution that play into the particular area.

  • But if the common law so far indicates that the doctrine is one which, where there is a constitutional statute, there cannot be implied repeal, namely it cannot be repealed by a side wind, I think one of the arguments against you is that for the prerogative now to be emptying the 1972 Act of content is a different sort of side wind.

  • My Lord, that is one of the arguments put against me, and my essential answer to it is that constitutionality is to be judged in the round, and it includes the prerogative as an essential foundation constitutionally; it includes the 1972 Act being set up at its base on the basis of continued dualist operation; and it includes, if ultimately you are searching for Parliament's intention which is what this game is all about, these are simply aids to working out what Parliament has intended by the legislative scheme, it includes, we submit, the entirety of the legislative scheme. So if the 1972 Act is to be described as constitutional, that is a description which cannot be, as it were, imposed on the 1972 Act and then forgotten about when you look at the later legislation dealing with exactly the same sphere or context.

    So if you are looking at the scheme and you are saying constitutional, you take into account dualism, you take into account the existence of prerogative, and most importantly, perhaps, and this is the theme I am now on, you take into account the entirety of the legislative scheme. What that tells you is that when Parliament wants to control the exercise of executive power on the international plane, it says so and it does so, not merely generally in relation to CRAG, with its, as it were, general controls over the treaty ratification, but the very specific and nuanced scheme that I have just taken you through. That is my answer.

  • Yes but ... is the answer.

  • Perhaps in your submissions tomorrow, I would certainly be interested in knowing how what you have just said about the need for constitutionality to be judged in the round, the dictum you have cited from Lord Bingham's judgment in Robinson about the need for flexibility in applying constitutional principles, the whole of that may feed into the approach you take to the effect of the -- or relevance of the referendum result to these proceedings.

  • Yes.

    My Lord, I am going to turn now to the 2015 Act, and if at the end of that I have not answered my Lord's question, someone will make a note and nudge me and I will do it first thing in the morning.

    The 2015 Act is in the same volume of authorities, at tab 7, MS 160, and we don't need to spend long on the body of the Act itself. It contains all sorts of provisions about all sorts of things and it makes no express provision about the legal consequences of the referendum.

    So the significance, if any, in our context of the Referendum Act is not in relation to what it says, but what it doesn't say.

    My fundamental submission on the 2015 Act is that that absence does not mean that the 2015 Act is legally irrelevant. That is how it was treated by the divisional court.

    Indeed we make the submission that it would be little short of bizarre if that were to be the position. Little short of bizarre, because the 2015 Act posed and put to a vote of all the people of the United Kingdom, the very question which the divisional court and the respondents say has to be reput to Parliament. And that prompts the question: was Parliament really in 2015 in passing that Act, in setting up the referendum, doing no more than simply reserving to itself the right to decide whether to leave or not as it saw fit.

    Not merely is that highly improbable, but it would lead, it would run counter, we respectfully submit, to the repeated statements by ministers and by the Government, both in the debates leading to the Act, in Parliament, and in statements outside Parliament.

    We have, in our case, if you could just find that for a moment, in footnote 4, a characteristic understatement -- a footnote, at the various statements upon which we rely.

  • I am going to give you them 12337.

  • 12337, and you will see that -- I don't think your version of our case probably has MS numbers in it, does it?

  • Have you got MS numbers for footnote 4 --

  • We don't have cross-references, if that is what you mean, but this was clearly stated on many occasions, is that what you are --

  • What is the nature of this argument? Is it only relevant if there was up until this moment a -- no right to use the royal prerogative, in which case you are arguing, are you, that the Act reintroduces a right to use the royal prerogative, because if there is already -- or is it just confirmatory --

  • Yes, and it is addressing, I am going to tell you this again in a moment if I may, it proceeds on the premise that the prerogative is available, but if the concern is, and some of the questions that have been asked by the court indicate that the concern may be that there is a difference between the ability of Government under section 2 to go all the way back to 1972 to alter the corpus of rights from time to time, brackets, but the implicit assumption underlying it all is that something will continue to exist; but this is a whole different beast. The answer is, to come perhaps immediately and directly to my Lord, Lord Reed's question, that this serves to allay that constitutional concern, and the reason that I think my Lord, Lord Reed reminded me of Lord Bingham in Robinson was because one should not be unduly concerned if one is looking, as it were, for mechanisms of parliamentary control and parliamentary interest, one should not be too concerned about drawing too straight or direct a line.

    You look to see whether, in the real world, Parliament has effectively sanctioned, to put it loosely, rather than legally, that which the Government now proposes to do through the exercise of the prerogative. I make it entirely clear, we do not assert that the 2015 Act provides the source, a statutory source of power; the significance of it is in what it doesn't say.

  • But if you are wrong, standing at 1972, prerogative cannot have been exercised as you argue today, in 1972, how do you say that has changed? Do you say that has changed as a result of subsequent legislation?

  • We say the legislative scheme has to be looked at as a piece. This is the current issue.

  • I know you do, but it is the logic of your argument by saying looked at as a piece -- we could conclude that if we were judging this in 1973, we would be against you, but by judging it in 2016, we could be in your favour.

  • I am not sure that is the logic of my argument. I am not sure I am asserting that the later legislation provides a statutory authority or basis --

  • Why are we looking at it then?

  • Because all sorts of concerns have been raised inter alia around the scale of the change, and whether or not this is relevant constitutionally, that Parliament has passed this legislation and has set it up.

  • It is relevant only to this extent, isn't it, that if it is submitted in the 1972 Act nobody contemplated withdrawal, by the time the Act has been amended in 2008, that argument seems no longer available, but it doesn't seem to have any other significance than that.

  • My Lord, can I develop the core points we make on it, and give you them, just so I don't go off-piste and give the wrong answer --

  • Do that, and then we may come back to our questions. That is fair enough.

  • Can I ask one question arising out of the material that was available. In paragraph 107 of the divisional court judgment, they say that -- they refer to a document which they say made it clear to Parliament that it was only to be an advisory referendum. Is that correct, and if so, where is the document?

  • It is in bundle 18; tab 202, MS 6279. I am slightly out of my course because I was going to give you another --

  • You were going to come back to this.

  • No, let's deal with it now, because we are there but if you still have, just by way of -- let's have them both open at the same time, if you still have our case footnote 4.

  • I was going to add in, if I may, one further reference to footnote 4.

  • Which is authorities 39, tab 509, supplemental MS 981, a statement by the foreign secretary on second reading of the bill, effectively saying this is going to be decisive, it is a matter for the people to decide, and not anyone else.

    So --

  • What does this go to? Construction of the --

  • Well, you will have seen from the Lawyers for Britain's written intervention that they do say it goes to interpretation of the Act. We don't need I think to go that far, or do not go that far, but we do respectfully submit that it is relevant, that that was the basis on which Parliament was proceeding in passing this Act and we say that is confirmatory of our position, which is that they left in place, which is the only way in which effect could be given to it, which was to exercise the prerogative power to withdrawal and to give the Article 50 notice. That is the significance, but no more than that.

    You have seen a pretty desultory debate as well about whether or not this Act is properly to be described as advisory, which is the next lead-in point, as it were, to the briefing paper that I have just taken you to, but again we respectfully submit there is little that can sensibly be attached to that characterisation because it could be advisory, either as the divisional court concluded in 106, for law makers in Parliament, as they put it, or it could be advisory for Government, so it is entirely neutral to call it advisory.

    Then they say the briefing paper involves in effect the Government assuring Parliament, brackets, contrary to all the express statements I have just shown you in footnote 4, that this is a briefing paper in which the Government, is the implication, has assured Parliament that it is simply going to be advisory in that sense and Parliament, the implication being, is going to have another go, whatever the outcome.

  • Mr Eadie, before we leave footnote 4, had it been your intention to give us the cross-references which we don't have?

  • The cross-references within the footnote is what my Lady is referring to.

  • It refers to the Conservative manifesto, it refers to Hansard and it refers to the leaflet that we all got --

  • My Lady, could I give those, if you have not got them. The first one, the Conservative manifesto, is authorities bundle 16, tab 178.

  • We have got them, further up the page.

  • I think the best thing to do is for you to let us have them in a document tomorrow, rather than going through all this and taking up court time.

  • On a different point, in your references to the whole scheme, looking at the whole legislative scheme, could you give us, if we don't already have it in the papers, on authority on the extent to which these statutes can be regarded as in pari materia, in other words dealing with the same subject matter, the whole group that you referred to from 72 up to 2015, or any of them, and the extent to which we can construe an earlier statute by reference to a later in the context of this case? I think it would just be helpful to get the principles.

  • I will come to that just before I make my four principle submissions on the statutory scheme, I have a little section that says "Is later legislation after the 1972 Act relevant? So you are going to get it.

  • Good. We are thinking along the same lines.

  • I promise to write it down.

    It is of some significance because the divisional court proceeded on the fundamental premise that it was not. So I am going to have to address that.

    So advisory I have dealt with -- could be advisory for Government as well as law makers; not undermined by the briefing paper. We have got to the briefing paper. Short points in relation to the briefing paper, the first one is that this is a House of Commons Library briefing paper. Some concern I think may have been expressed by the House of Commons authorities as to the appropriateness of referring to it, but it is referred to in the divisional court's judgment, so that horse may have bolted, but Part 2, Article 9 of the Bill of Rights. It is a House of Commons Library briefing paper, not written by Government but by a member of House of Commons staff. It tells one nothing, therefore, about the intention of Government. It is not an assurance to Parliament by Government, it is not anything that would bear on parliamentary intention. It is not a legitimate aid to interpretation.

    If it is being suggested that this is some form of Government statement to the House, then it would need to be set alongside the absolutely clear statements that are collected in footnote 4 of our case, but we respectfully submit, at a more fundamental level, it is unhelpful in terms of assessing whether or not the 2015 Act is to be treated as advisory in the sense that the divisional court used that term in.

    So that is what I say about that document. I hope that answers my Lord, Lord Clarke's question on that.

    Two core points on the 2015 Act, if I may. The first, and this is its true legal significance, we respectfully submit, is that it proceeds on precisely the same footing as the other parts of the scheme of control over the conduct of international relations by Government. It makes no provision seeking to control the prerogative powers that the Government exercises. It imposes no requirement as other acts had done in the same territory as we have seen for primary legislative authority, before any step is taken in the exercise of those powers, nor indeed for any of the other nuanced forms or mechanisms for parliamentary involvement, and that, no doubt, is because it is itself primary legislation. Specifically, there is nothing to constrain the Government giving Article 50 notice. Its significance in legal terms is precisely that it does not do so, as it could perfectly well have done, see the raft of earlier legislation.

    The silence, we submit, is compelling and consistent with the rest of the legislative scheme and that point is powerfully reinforced by two other facts. Firstly, in the event of a decision to leave, if that was the outcome of the referendum that Parliament set up, the process of withdrawal had to commence in the prescribed way. Article 50 notice was the only, and under the Lisbon treaty the mandated, first step and as we already know from the legislative scheme that we have gone through, from 2008 and 2011 in particular, Article 50 was already been considered by Parliament and left in the hands of the Government. So that the first reinforcement.

    The second is, moreover, the 2015 Act represents specific contemplation by Parliament of precisely the sort of impact on rights and obligations that would flow from withdrawal. Do we leave the club, is the question that the referendum posed and, if we do, the processes of the club necessarily go, the effect on rights necessarily occurs and Parliament was plainly entirely alive to that fact. It could not possibly be improper to use the prerogative to give effect to the results of the democratic process that Parliament had chosen to set up.

    The counter position, it might be thought, is worth at least considering. It involves contending that Parliament had left Article 50 and the giving of an Article 50 notice within the prerogative sphere in the earlier legislation, and the 2015 Act in effect and implicitly reverses that position and now requires that the giving of such notice should be subjected to primary legislative authority.

    So they have already considered Article 50 in 2008 and in 2011, and the thesis that is now advanced is that in 2015 --

  • I think the point, the way it would be put against you, I suspect, is that under the 1972 Act it was not left with the prerogative and no subsequent act was inconsistent with that, because that was the position in 1972 and that is what it remains, the argument --

  • That may well be the submission but that is not the point about the 2015 Act. If they are right at the base level, then so be it. That was the point you were putting to me earlier.

  • Yes, that is what is put against you. I don't think it is put that it survived any differently.

  • Quite but there is a jump, we respectfully submit, between 2011 and 2008.

  • I can see that. I can understand what you say on that point.

  • And 2015. That contrast is stark.

    The second on core points on the 2015 Act is that it was passed with Parliament acknowledging at the very least the political realities associated with the scale of the decision to stay or leave. We respectfully submit that the proper implication from that act is that doing so, Parliament was acknowledging and acknowledging plainly, consistently with the statements that happened to have been made, that the vote should decide that question and that all concerned, including Parliament, would respect the outcome.

    On that basis, it has obvious constitutional significance. In the Shindler case, which as you will recall, preceded this litigation, the Shindler case, I am not going to invite you to turn it up now, but it is in core authorities volumes 3, tab 18, MS627, and Lord Dyson at paragraph 13 describes the matter thus:

    "The referendum (if it supports withdrawal) is an integral part of the process of deciding to withdraw from the EU."

    We respectfully submit that that is an entirely correct characterisation of what the 2015 Act was doing. It ascribes proper constitutional significance to the fact of the referendum and to the fact that Parliament has itself decided to put that decision to the people in the vote.

    I add in parenthesis that some of the other parties, Pigney and Expat respondents, suggest that Lord Dyson was also indicating that he expected that Parliament would have a role in that process. We respectfully submit that, when you actually consider the issues that were truly being debated in Shindler, that point is not a good one but the significance, and you see that from just looking at paragraphs 13 and 19 in their context, but the true significance of it is in the correct description, as I have just indicated: the referendum he said, if it supports withdrawal, is an integral part of process of deciding to withdraw from the EU.

    Of course the 2015 Act frames the question, we submit, now to be asked, and it does so in circumstances in which Parliament has evidently confronted the consequences of the binary question that it put to the people, including, at a basic level, the consequences that some rights and obligations flowing from membership of the club would not be available and specifically contemplating in the leave part of the binary question the very effect on rights which it is now said is constitutional anathema.

    So we respectfully submit that it is not correct to treat that as legally irrelevant. The legal effects and the legal significance may be more or less subtle, but they are direct in the sense of it leaving the prerogative power, the Article 50 power, in place, and, if one chooses to review the matter more broadly constitutionally, the effect is precisely as Lord Bingham described it.

    Is the later legislation relevant? My Lord, Lord Mance's question. We respectfully submit that it is a current question. The legislative impact on prerogative powers can and does change as the legislative scheme alters and Article 50 of course does not arrive until 2008. So you could hardly freeze that issue in 1972. So you don't grapple, we submit, with 1972 in isolation because of the nature of the question that you are asking, which is the current state of prerogative powers. You take the legislative scheme as it exists in its entirety, as of the date on which you are asking that question -- in other words today.

    In any event, we submit that there is good authority which, at the very least, implies at a high level, a high level of judicial decision making, that constitutional issues of the kind that confront you today need to be determined in the light of present constitutional circumstances. That is the true significance, we submit, of the ECA and that legislative scheme governing EU matters, EU treaty making, that is the true significance of describing that legislative scheme as constitutional.

    We do respectfully submit that, in that respect, the Robinson case to which reference has already been made is of real interest. We have given you quote from Lord Bingham in our annex to our case at paragraph 3, but Robinson itself, which I am not going to take you to but which I recommend to the court, if I may, core authorities volume 4, tab 81, MS3272, Lord Bingham.

    Can I therefore make four principle summary submissions --

  • Which page is Lord Bingham's observation on, sorry? Let us know later, it is all right.

  • I think it is paragraph 12. I will just check that. Paragraph 12 we quote in the annex.

  • Okay, we will find it. Thank you.

  • In any event, I think this is the point my Lord, Lord Mance asked expressly, the in pari materia one. I can't remember if we have got cases in our case to support that, but, if we do, I think it is our case at paragraph 76, we respectfully submit in any event on ordinary principles of interpretation it is legitimate to rely on later parts of a scheme when considering the 1972 Act, firstly because the 2008 Act amends the 1972 Act -- that is our case at paragraph 75 -- and, secondly, because we are in in pari materia territory. That is our case at paragraph 76 and the citation is there set out.

    Four principle summary submissions then on the statutory scheme, trying to draw the points together if I may. Submission one is that the shape of the schemes of control over the exercise of prerogative powers represent precisely the exercise of parliamentary sovereignty. Parliament has considered what the nature of those controls should be. Parliament knows what prerogative powers in the conduct of international relations exist in relation to the making of treaties, in relation to the negotiation of treaties, and in relation to withdrawing from treaties. Those are all proper parts of the generally expressed, the generally characterised, prerogative power. That is we submit the legislative premise or base position on which the scheme of legislation exists and the prism through which it is to be viewed.

    So the specific controls that Parliament has seen fit to enact in the scheme I have taken you through represent their considered view as to the extent of its encroachment on to that base position, on to those base powers, and the base position is otherwise left in place. That is why it is as significant to examine what Parliament has not done as to examine what it has done. That is why I started my submissions in describing the prerogative by indicating that its source was not legislative, and that it had its own freestanding common law source, and it is for Parliament to make those decisions, we submit, about the extent of encroachment, to craft the scheme of control, to make the legislative policy decisions as to when and in what form it wants to exercise that control. Those are not decisions which we respectfully submit the court can or should make under our constitution. So applying the scheme of control that Parliament has chosen is, we submit, an acceptance and not an abnegation of parliamentary sovereignty. That is the first submission.

    The second submission is that Parliament, it is clear, has legislated expressly, both generally in relation and in relation to the EU, to establish the nuanced system of controls you have seen and it has conspicuously refrained from making any provision to control the withdrawal from treaties or the steps commencing a process leading to withdrawal. It has not done so in CRAG, which is all about ratification. It has not done so when specifically considering which types of decision in the EU context our very contexts should be the subject of what forms of control.

  • I suppose if one is being really technical about it, it has legislated to control the exercise of the prerogative in relation to the withdrawal of other countries from the EU. That is Lord Carnwath's point about the inclusion of Article 50(3) in schedule 1.

  • My Lady, yes. You are right.

  • If one is being really technical about it.

  • Yes, you are right -- can I add "subject to the point my Lady's point" then to the point I have just made then.

  • Forgive me, I didn't mean to put you off your stride. That was not my intention.

  • That caveat, the subject two was the next point -- it was going to be there was no express provision that Article 50 notice or withdrawal is subjected to legislative conditions and must thereafter be exercised accordingly. Of course there are the controls which my Lady has just reminded me about, but, in relation to the exercise of our powers, there is no control in that way. The clear position indeed is directly to the opposite effect. The controls and the limits of the controls have been decided upon and made the subject unsurprisingly of express provision. The rest is prerogative.

    That was the basis on which the 72 Act proceeded, that was the basis on which each of the pieces of legislation thereafter proceeded and that was the basis on which the 2015 Act proceeded, albeit with its additional constitutional significance of the kind that I have indicated and there is therefore, we submit, no necessary implication, no necessary implication because, in this sphere, this is the force of the reasoning of Lord Justice Lloyd in the Rees-Mogg case, Parliament when it wants to exercise control has done so very deliberately and very expressly.

    So we are not in the sort of territory that you had in all of those earlier De Keyser type cases. We are not dealing with a situation in which Parliament has said, "This is the activity that you can do and, if you are going to do it, these are the controls, these are the regulations, these are the preconditions, you have to jump over hurdle A, B and C, and then you can exercise the power." That is what has created the necessary implication or something virtually analogous to that in the past and we are simply not in that territory. We are nowhere near it, because what that requires, as we saw from De Keyser, is a very precise identification of the nature of the act in question.

    What is the act in question here? It is the giving of Article 50 notice and there has been no control over that at all. There is no direct regulation, there is no regulation at all of that activity, and so there is no necessary implication, (a) for the reason given directly transposable into our context by Lord Justice Lloyd in Rees-Mogg, but, (b) and in any event, were one to apply properly the reasoning and principles laid down by the House of Lords in De Keyser and subsequent cases, for the reason I have just identified.

    It is self-evident, we submit, that withdrawal or revocation of the treaties has the potential to affect EU related rights and obligations in a very serious way, and Parliament knew that and yet left that power untouched, that prerogative power untouched.

    No one can pretend they were not fully aware of what would happen if Article 50 notice was given, it was one of the principal changes made by the Lisbon treaty noted in the explanatory notes. If its intention truly had been that to subject leaving or withdrawing to a requirement for primary legislation, not merely could it have said so, but we submit it undoubtedly would have said so -- undoubtedly because it is evident that in those pieces of legislation I took you to, particularly the 2008 Act, it was specifically considering both -- and they are distinct aspects -- the mechanisms of transposition into domestic law and conduit, the stuff of the 72 Act part 1, and section 2 in particular, and the stuff of the later legislation in particular, the controls it wished to impose on the exercise of prerogative powers by Government on the international plane.

  • You take from the authorities you cited this morning that the current state of the prerogative in relation to this matter depends on the current state of the statute book and what the answer might have been in 1972 is not actually the issue?

  • Yes, and you don't freeze it there. You don't, as it were, get to a place where you say "The Act must have had that meaning then, so it didn't ..." You are not in that territory at all. You are in the territory of asking a current fundamentally important constitutional question. This court in particular, I hesitate to say, but this court in particular has shown itself to be well aware of the concerns about the law reaching conclusions which the ordinary man and woman on the street simply would not understand.

    If you said to the ordinary man or woman on the street, "Do you regard the fact that a referendum has occurred to be remotely relevant to the question of whether or not the Government can give Article 50 notice?" the answer would be, "Of course it is."

  • If you put it as "remotely relevant" --

  • Relevant as a matter of law.

  • As a matter of law, they would probably say "I will ask a lawyer".

  • My Lord, certainly, but the divisional court's conclusion is that you just exclude that from the court's consideration. They say it is legally irrelevant.

  • (Inaudible) as a matter of law, as to what it doesn't say, what it assumes. Your position really is that the source of the power was and remains the prerogative.

  • The source of the power was and remains the prerogative, that was my first fundamental point about it, and my second one was, as it were, the rather looser constitutional point designed to scotch concerns about scale, if I can put it that way.

    My Lord, that may be a convenient moment to break. I think we are on track.

  • Thank you very much for letting us know that.

    10.15 tomorrow or as soon as thereafter as we can come in. Thank you very much indeed.

    Court is now adjourned.

  • (The court adjourned until 10.15 am the following day)