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

  • My Lords, my Lady, the case for Ms Gina Miller is that the prerogative power to enter into and terminate treaties does not allow ministers to nullify statutory rights and duties.

    In any event we say, Parliament did not intend that the rights and duties, which it had created by the 1972 Act, could be nullified by ministers acting on the international plane.

    The court has heard that the case for the appellant is that the 1972 Act is a conduit. It is said it creates only contingent rights and obligations -- that is paragraph 63(d) of the appellant's written case, MS page 12356 -- and these rights are said to be contingent on the decision of the appellant to exercise prerogative powers to terminate the EU treaties.

    My Lords, and my Lady, I say at the outset that the courts have rightly recognised that the 1972 Act has a constitutional status. It creates a new source of domestic law, and indeed it gives priority to it. My friend Mr Eadie accepted this constitutional status in answer to my Lord, Lord Wilson yesterday.

    The appellants' argument, however, if correct, would mean that the 1972 Act, far from having a constitutional status, would have a lesser status than any other act, a lesser status than the Dangerous Dogs Act because on the appellants' argument, Parliament has made this fundamental constitutional change to domestic law only for as long as the executive does not take action on the international plane to terminate the treaty commitments.

    We say that in the context of an act of Parliament, which expressly states, expressly states in section 2(4), that its provisions take priority, even over other legislation, the words "passed or to be passed", it would, with respect, be quite extraordinary if nevertheless the 1972 Act could be set at nought by the actions of a minister acting without parliamentary authority.

  • When you say in the first sentence of your submissions that your case is that the executive cannot alter rights and duties, are you actually limiting it to rights and duties in the sense of the content of the substantive law, or are you including the change which arguably would be brought about if we left the union, to our constitutional arrangements to the question what is our source of law, as opposed to the question what are its contents.

  • The two are plainly connected, but I take your Lordship's point.

  • You are not limiting yourself to the --

  • I am certainly not, because the 1972 Act, as your Lordship well knows, did not merely introduce rights and duties; it created a new source of rights and duties and that is part of its constitutional status. So I say this is an even stronger case than some of the cases that appear in the books, where the courts have said that this prerogative power cannot be used to amend domestic law, this is an even more fundamental question.

  • It is a second dimension beyond merely the constitutional status, and you can recognise that there is a constitutional status, whatever that slightly amorphous term means, but your point is that this Act of Parliament created an entirely new source of laws, and even if you don't regard it as an act of constitutional status, that aspect alone invests it with a particular significance.

  • That is my submission, and my submission is that it is inherently unlikely in that context that Parliament, when it enacted the 1972 Act, can possibly have intended that something so fundamental, so fundamental change, could be set aside by a minister.

    Your Lordships and your Ladyship will be well aware that there was in 1972 a debate, which we hear much less of nowadays, as to whether Parliament itself could have revoked the 1972 Act. I think we all now accept that, of course, Parliament, by reason of parliamentary sovereignty, can do what it likes, but the idea that ministers could revoke this fundamental change to our constitutional order, in my submission, is inherently unlikely. It would require the strongest of indications in the materials for the court, in my submission, to accept any such proposition.

    The enormity of the proposition for which my friends contend is that they say the Secretary of State can nullify what is otherwise part of domestic law, and a central part of domestic law, as indicated in the scores, hundreds of statutes which implement EU law, despite the fact that so many of the obligations under the 1972 Act are obligations imposed on ministers themselves; so the idea that ministers could revoke this scheme, again, is even less plausible.

    Now, I respectfully submit that the submissions that the court has heard from the appellants are wrong in principle. And they are wrong in principle for seven main reasons. Can I identify them and then seek to develop each of the points if I may in turn.

  • Can I ask you, before you do that, Lord Pannick, you said that in 1972 there was a debate whether Parliament itself could revoke the 1972 Act; did that find expression or reference in any case or are you simply referring to something else?

  • No, I am simply speaking of the academic debate that there was at the time, but I am not aware of any case.

  • Can you give us a reference?

  • Was it not part of Mr Blackburn's submissions?

  • Yes, your Lordship is right --

  • It would be interesting to have a reference or cross-reference.

  • Indeed. My Lords and my Lady, there are seven points I want to make. The first point is the European Union Referendum Act 2015. I say it does not assist the appellants' arguments on the issue in this appeal, and the issue is the scope of the appellants' prerogative power.

    Second, I want to make some submissions as to why the prerogative power to enter into or resile from treaties cannot validly be exercised so as to nullify statutory rights or obligations, far less, to take my Lord, Lord Sumption's point, a new constitutional order that Parliament has created.

    Our case, as my Lord, Lord Sumption put to Mr Eadie, our case is that there is no relevant prerogative power in this context. The appellants' proposed conduct exceeds the permitted limits of his prerogative power.

    The third head of argument that I have is I say that the court should pay regard, I say respectfully, the court should pay regard to important principles of statutory interpretation which are relevant in this context. These principles show that it is for the appellant to demonstrate that Parliament has clearly conferred a power to nullify a statutory scheme, and I am thinking of the case law on Henry VIII powers, on the principle of legality, and on the principle of no implied repeal and I will develop that submission.

    The fourth head of argument that I have to put before the court is that in any event, in the light of the purpose and the content of the 1972 Act, Parliament did not intend that what it had created could be nullified by a minister exercising the prerogative.

  • You have obviously chosen your words carefully; Parliament did not intend that the prerogative was used; so you are not saying that Parliament did intend that the prerogative should not be used; or am I being too pedantic?

  • Your Lordship is never pedantic. The fourth point follows from the third, because the third proposition is that there are principles of statutory construction, and so the appellant has to show something clearly. But I am quite happy to bear the burden if I need to. I say, if necessary, I can persuade the court that Parliament clearly intended that ministers should not have this power.

  • Your point is, if the background is that it is for the appellant to demonstrate that it did intend, then you don't really have to address the question of whether or not it formed a positive intention.

  • Absolutely. If I need to, I say I can demonstrate from the contents of the legislations, as from its purpose, that Parliament itself had imposed a clear system of parliamentary control on changes to the treaties. It is therefore, I say, most unlikely that Parliament can have intended that if the whole scheme is set aside, it can be done without parliamentary control.

    The fifth point, is I say, with respect, the appellant is wrong to regard De Keyser as somehow setting out an exclusive principle as to the limits on the use of prerogative powers. I say there is no relevant prerogative power here and in any event, ex parte Fire Brigades Union recognises, as my Lord, Lord Mance, pointed out yesterday, that whether or not De Keyser applies, it is not open to ministers to use prerogative powers to frustrate a statutory scheme.

    The sixth submission I want to make is, I say, Mr Eadie's reliance on the post 1972 statutes cannot assist him. If, as we submit, there was no prerogative power to nullify the 1972 Act after it was enacted, the question is whether Parliament intended by the later legislation to confer a new power to that effect.

    I say only the clearest of statements by Parliament to that effect could create a new prerogative power. I say that the post 1972 legislation is very far from containing any such clear statement and in any event, the absence in the later legislation, the absence in the later legislation of any relevant restriction, Mr Eadie relies on the absence of any provision, cannot assist him because the lack of a prerogative power to frustrate a statutory scheme is so basic a constitutional principle, that one cannot infer from the absence of an express provision to that effect that Parliament intended to remove that basic common law restriction. Parliament didn't need to address the point, it is so obvious, it is so basic.

    Seventh, and finally, I am going to say it is no answer for the appellant to say that Parliament of course can choose how to be involved; it will later be involved in various ways. The fact of the matter is that notification will cause the nullification of statutory rights and obligations and a statutory scheme of fundamental importance. There is no prerogative power to notify and only an Act of Parliament can give such authorisation.

    The first point, my Lords, is the 2015 Act. The 2015 Act says nothing whatsoever about the consequences of a referendum decision. As the court has heard, when Parliament wishes to make a referendum binding, it says so, and there are many examples, section 8 of the Parliamentary Voting System and Constituencies Act 2011 is one example, MS 4611, volume 13, tab 136; that was the alternative vote.

    If Parliament meant the 2015 Act to have a legal effect, it could and it would have said so. My friend Mr Eadie nevertheless submits, and I wrote what he said down, he said the 2015 Act "gave the decision on withdrawal to the people".

    Well, I respectfully submit that is impossible to understand as a legal proposition. Indeed, it is particularly difficult to understand when the Government resisted an amendment to give legal force to the referendum and explained why they were doing so.

    Can I invite the court's attention, please, to authorities volume 34. It is tab 479 and MS page 11688. Volume 34, tab 479 and it is MS page 11688.

  • We are looking at a debate, are we?

  • Your Lordships are.

  • This is justified on what basis?

  • It is justified on the basis that it is well established that the court may have regard to Hansard to identify the purpose of a statute. The authority for that not in the bundles is what my Lord, Lord Reed said for this court in the SG case [2015] 1 WLR 1449, paragraph 16.

  • That was specifically in the context of assessing proportionality of legislation in relation to the European Convention on Human Rights. The Strasbourg court does look at Hansard and British courts have followed suit.

  • I can give your Lordship other authorities.

  • I think other authorities might be better.

  • We can look at it at the moment de bene esse, but in due course you will take us to --

  • Is your point that if one is looking for the mischief or the aim of the statute, the aim was shown to be advisory by this statement?

  • I say it is well established, one can look at Hansard in order to identify the purpose, the mischief, at its particular --

  • Shall we look at it then.

  • I think the trouble is, if I am right in my recollection, Mr Eadie suggests there are other passages where other things are said in Parliament on this point.

  • He has not cited it, no.

  • I think he referred to some.

  • Your Lordships will take a view on whether it assists or it doesn't assist. It is at tab 479 and a specific amendment was proposed, and it was proposed by Mr Alex Salmond, and it is called amendment 16. Your Lordships see it at the bottom of page 11688:

    "The chief counting officer shall declare ... the result of the referendum if the majority wish the UK to leave the EU ... the chief counting officer may declare that a majority wish the UK to leave the EU only if a majority of total votes passed in a referendum are against the United Kingdom remaining and a majority of the votes cast in the referendum in each of England, Scotland, Wales and Northern Ireland are against the United Kingdom ..."

    That was the proposed amendment to the bill, and it was addressed by the minister at the previous tab.

  • Sorry, Lord Pannick, I am not following, it is my fault; did you say that this was going to demonstrate that it was an amendment to give the referendum legal force?

  • Why does it do that? It tells you how to count it.

  • The purpose of the amendment, as I understand it, was to specify what result would be, but I take your Lordship's point, but can I show your Lordship what was said about this at 478, which is the previous tab, and if your Lordships go to page 11687, and in the left-hand column, column 231, halfway down, the court will see the Minister for Europe, Mr David Lidington, and in the second paragraph, in line 5, he says he is going to start by addressing amendment 16, and he makes the point that he is not surprised that the amendments should be moved. Then he says:

    "Amendment 16 does not make sense in the context of the bill. The legislation is about holding a vote. It makes no provision for what follows ... the referendum is advisory ..."

    That is simply the point I want to make, and I say that is entirely consistent with the contents of the Act. It did not address any consequence, far less, far less, did it address the process by which the UK would leave the EU if the people voted as they did to leave. In particular, it did not address the respective roles of Parliament and ministers, and my submission, the very simple submission, my submission is that whatever the proper legal scope of prerogative power in this context, it is entirely unaffected by the 2015 Act.

    I can understand a submission that the referendum result justifies the use of prerogative power to notify, but the court is not concerned with justification, there is no issue as to justification. The question for the court is one of law. The question is: does the appellant have a prerogative power to notify under article 50(2).

    This is not, as Mr Eadie submitted, to deny an effect to the referendum. The referendum is plainly an event of considerable political significance, but my answer to -- in particular to my Lord, Lord Reed is that the political significance, whatever it is, is not, with respect, a matter for the court, and it is not a matter for the court because it is irrelevant to the legal issue of whether ministers enjoy a prerogative power to set aside the 1972 Act.

    In any event, if, as I shall submit, if the proper interpretation of the 1972 Act is that ministers have no power to nullify its terms by the exercise of the prerogative, the court would need a much clearer statement by Parliament in 2015 that the inhibition is removed by anything in the 2015 Act.

    Both the Attorney General and Mr Eadie said yesterday that if the divisional court judgment is correct, then Parliament is to be asked the same question, they said precisely the same question, that was put by Parliament to the electorate, and which the electorate answered in the referendum.

    Now, the court will recognise of course, it is entirely a matter for Parliament what issues it may wish to consider if a bill authorising notification is put before it. But I do submit, respectfully, that the court cannot assume that the question put to the electorate in the referendum, should we remain or should we leave, is the only question which Parliament may wish to consider.

    Since the appellant raises the point, we are entitled to say that Parliament may wish to express a view on what information it needs from ministers before approving notification. Parliament may wish to impose conditions or requirements on the Government, either substantive or procedural. By procedural I mean reporting back to Parliament. I emphasise these are matters for Parliament. I am not inviting the court to rule on them; I am simply responding to the submission that if the divisional court is right, the same question is being put to Parliament as was put to the electorate, and that in my submission is not the case.

    My friend Mr Chambers is going to have more to say on the 2015 Act, but that is what I want to say. In my submission it doesn't assist the court on the scope of the prerogative power that is enjoyed by the executive(?).

  • Before we move on, we were taken by Mr Eadie, and I think you should have an opportunity to deal with it, it is volume 18, tab 203, MS 6312. He cited what Mr Hammond, the Secretary of State for Foreign Affairs, said:

    "This is a simple but vital piece of legislation which has one clear purpose ... deliver on our promise to give the British people the final say on our EU membership."

  • My answer to that is there are various statements at various times.

  • But since the point has been raised, I am, I hope, entitled to point to different statements. Mr Chambers, if it assists the court, will show the court more statements in this context. I respectfully submit that what really matters is the content --

  • I quite agree with that. That is more or less what I was suggesting.

  • I would respectfully accept that, my Lord.

  • If the question is the scope of the prerogative, then clearly the outcome of the referendum cannot affect that. If a question is whether a prerogative which exists is properly being exercised, then a referendum result could be a relevant consideration to that question.

  • If the question is, is it an abuse of power --

  • -- then I take your Lordship's point, but we are submitting that there is simply no prerogative power to interfere, frustrate, nullify a statutory scheme. That is how I put the case, but I entirely understand your Lordship's point. Once we are into questions of abuse(?), of whether it is proportionate, the court will plainly give the broadest of discretion, and that is not our case. It has never been our case. So that is how I put that point.

    That is the first point.

    The second point, my Lords, is the limits of prerogative power relating to treaties, and the appellant relies on the well-established, and it is well established, prerogative power to enter into and resile from international treaties. Mr Eadie emphasised the continuing importance of that prerogative power, and nothing that I say is intended to dispute those propositions.

    My case is that the appellant fails to recognise the well-established limit on that prerogative power, and the limit is that that prerogative power relating to treaties cannot be used to nullify, to frustrate, domestic law, in particular, rights or a scheme created by Parliament. The limitation is based in part, importantly in part, on the principle of parliamentary sovereignty. Again, Mr Chambers is going to deal with parliamentary sovereignty, and with the general case law relating to it, and we have addressed that in our written case, paragraphs 20 to 21, but I am not going to take time in relation to that.

    Now, we say that the crucial point is that the reason why the Crown enjoys a broad power in the making and unmaking of treaties is precisely because what is agreed on the international plane cannot affect, does not affect, the content of domestic law.

    The prerogative power in relation to treaties is not an independent and overarching power. It is a power which is defined and limited by the other principles of our constitutional law; in particular, parliamentary sovereignty. These propositions that the power in relation to treaties is limited by the inability of the prerogative to change domestic law are supported by high judicial authority.

    The court will have seen, and I will not go back to it unless I am asked to do so, Lord Oliver's statement for the appellate committee in JH Rayner, core authorities 3, tab 43, MS page 1779; and the statement by Lord Hoffmann for the board in the Privy Council in Higgs, Higgs v Minister of National Security, which is core authorities 4, tab 260, MS page 7244. Lord Hoffmann there speaks of it being the corollary, that is his word, the corollary of the unrestricted treaty-making power that it cannot change the law of the land.

    My criticism, my respectful criticism, of the appellants' submissions is that they emphasise the scope of the prerogative power in the context of treaties, but they seek to avoid what Lord Hoffmann described as the corollary: the power ends where domestic law rights begin.

    Now, it is of course rare to find examples of the treaty-making prerogative being used by ministers in an attempt to frustrate statutory or common law rights without authorisation from Parliament. This is a rare phenomenon and it is rare because ministers normally recognise and respect the basic constitutional principles that are set out from The Case Of Proclamations onwards, but there are examples in the books of ministers stepping over the line or the Crown stepping over the line.

    Two particular examples in the papers, one of them is the example that Lord Hoffmann refers to in Higgs. It is the Parlement Belge case, perhaps we could just take a moment to look at Parlement Belge, it is volume 24, it is tab 294, and it is MS page 8392.

  • Would you give me that reference again.

  • Yes, my Lord, it is volume 24, tab 294, MS page 8392.

    If the court has that authority, tab 294.

  • It is in core volume 4.

  • I am grateful, I had not spotted that, thank you.

    No, it is not. Not in mine.

  • Well, it is in my index but not actually in my file. (Pause)

  • The court will see the headnote: a packet conveying mails and carrying on commerce, that is a ship, does not, notwithstanding she belongs to the sovereign of a foreign state, officers commissioned by him, come within the category of vessels which are exempt from the process of law:

    "It is not competent to the Crown without the authority of Parliament to clothe such a vessel with the immunity of a foreign ship of war so as to deprive a British subject of his right to proceed against her."

    This is the judgment of Sir Robert Phillimore, and the relevant passage is at 154. In the penultimate paragraph on that page, MS page 8417, page 154, Sir Robert says:

    "If the Crown had power without the authority of Parliament by this treaty to order that the Parlement Belge should be entitled to all the privileges of a ship of war, then the warrant which is prayed for against her as a wrongdoer on account of the collision cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished. This is a use of the treaty-making prerogative of the Crown which I believe [he says] to be without precedent and in principle contrary to the laws of the constitution."

    There is a bit more detail but that is the point, that is the principle. Another example to which the court has already been referred but can I please take the court back to it is Laker Airways and Laker Airways is core authorities 2 at tab number 12, MS 307. The court has already seen this authority.

    What I want to show the court, if I may, is the argument from the Attorney General, Mr Sam Silkin, which appears in the report at page 727, MS 391. If your Lordships have that page, MS 391, page 727, at B, this is the judgment of Lord Justice Lawton:

    "The Attorney General based his submission on the well known and well founded proposition that the courts cannot take cognisance of Her Majesty's Government's conduct of international relations. Laker Airways' designation as a British carrier for the purpose of the Bermuda agreement was an act done in the course of conducting international relations ... the Civil Aviation Act did not apply ... that Act nowhere refers to designated carriers. An airline might be granted a licence to operate a scheduled route but not become a designated carrier. It could not by any legal process compel the Secretary of State to designate it as a British carrier. It followed, submitted the Attorney, that the withdrawal of designation must be within the prerogative powers exercisable by the Secretary of State on behalf of the Crown."

    Lord Justice Lawton rejects that submission at the bottom of the page:

    "The Attorney General's answer to the question was that the Secretary of State was empowered to act in this way [that is, take away the designation] because there was nothing in the Act which curbed the prerogative rights of the Crown in the sphere of international relations. Far from curbing these powers, by section 19(2)(b), Parliament recognised that the Crown had them."

    The content of section 19(2)(b) appears in the judgment of Lord Justice Roskill at page 719, letters B to C, MS page 383. It is there set out if the court is interested. Going back to Lord Justice Lawton, his Lordship says:

    "This is so but the Secretary of State cannot use the Crown's powers in this sphere in such a way as to take away the rights of citizens, see Walker v Baird."

    That is another example, although I recognise, of course, there are two strands of reasoning in Laker, the other being that the act had occupied the field.

    It may just assist to look at Walker v Baird, which is volume 9 of the authorities, tab 88 and it is MS 3409. Volume 9, tab 88, MS 3409. The facts of the case appear in the advice from Lord Herschell at 495, MS page 3413, middle of the page, page 495, Lord Herschell:

    "The respondents by their statement of claim alleged that the appellant wrongfully entered their messuage and premises and took possession of their lobster factory and of the gear and implements therein and kept possession of the same for a long time, and prevented the respondents from carrying on the business of catching and preserving lobsters at their factory. By the statement of defence, the appellant said he was captain of the HMS Emerald and the senior officer of the ships of Her Majesty the Queen."

    Missing four lines:

    "He said he was giving effect to an agreement embodied in a modus vivendi for lobster fishing in Newfoundland during the said season, which as an act and matter of state and public policy had been by Her Majesty entered into with the government of the Republic of France."

    That was the defence. We have an agreement with France.

    Then page 497, picking it up if I may at the bottom of 496, MS page 3414:

    "In their Lordships' opinion, the judgment below was clearly right ... unless the defendant's acts can be justified on the grounds that they were done by the authority of the Crown for the purpose of enforcing obedience to a treaty or an agreement entered into between Her Majesty and a foreign power ... the suggestion that they can be justified as acts of state or that the court was not competent to enquire is wholly untenable. The learned Attorney General who argued the case before their Lordships on behalf of the appellant conceded he could not maintain the proposition that the Crown could sanction an invasion by its officers of the rights of private individuals whenever it was necessary in order to compel obedience to the provisions of the treaty."

    The proposition he contended for was a more limited one and the more limited one was that the treaty was for the purpose of putting to an end to a state of war, and that argument failed on its merits.

  • In that case, it would have been lawful if Walker had been a foreigner. I think that is right, isn't it? Walker v Baird is the main authority for the proposition that the act of state does not apply to those owing allegiance to the Crown.

  • Yes, I take your Lordship's point.

  • If he had been French, it would have been fine.

  • It is difficult, but was it a case which -- where the events took place outside the jurisdiction?

  • They did take place outside the jurisdiction.

  • It was taking away the rights of a British citizen.

  • Yes, and the court notes the concession, accepts it is a concession but it is cited by Lord Justice Lawton, and rightly so, as a statement of principle: you cannot use the prerogative to take away the rights of a citizen -- by the prerogative. That is simply not acceptable, so as I say, it is not easy to find cases in the books, because these are rare events, but there are cases and they are all, in my submission, to the same effect.

    Now, in this respect as to what the scope of the prerogative is, we for our part commend to the court the valuable historical analysis in Ms Mountfield's written case, she will speak in due course, in her written case for the Grahame Pigney group of interested parties, core volume 2, it is MS 12483 and following.

  • Can I just press you on that. This took place, did it not, in respect of lobster factories on the coast of Newfoundland.

  • It is a Privy Council appeal from the courts of Newfoundland, so it took place within the relevant jurisdiction.

  • Your Lordship is right, it took place within the jurisdiction.

  • It is simply authority for the proposition, isn't it, therefore, that was established in Entick v Carrington.

  • I was going to say, Entick v Carrington is the source of the doctrine.

  • It is not to do with foreign acts of state; it is dealing with the suggestion that you can -- it is a Crown act of state which is not admissible within your own jurisdiction.

  • I accept that. I cite it also for the proposition that it is no defence to what is otherwise an unlawful act, that the individual concerned is acting pursuant to a treaty which has been agreed on the international plane. That cannot affect the rights, whatever they are, that are enjoyed in the domestic level.

  • Because the royal prerogative in respect of foreign affairs has very limited -- well, is essentially external. There are some domestic prerogatives but not in this context.

  • Indeed. The proposition for which I contend, which is there accepted, is the proposition relevant to the circumstances of this appeal.

    Now, my friend -- and Mr Eadie, and the appellant refers in his written case, to a number of other examples of the use of prerogative powers, and we have addressed them, each of them, in our written case at paragraph 29, beginning at MS page 12402. The court will understand that I do not have time to address all of them in oral argument. We have set out our responses.

    I respectfully adopt what my Lord, Lord Sumption put to Mr Eadie: none of these examples concern the use of the prerogative to alter the content of domestic law, in particular, by removing a source of our domestic law. Whether one looks at Post Office v Estuary Radio or any of the other examples, we say they simply do not assist on the issue before the court.

    May I comment, however, on the new example that is given this morning, and that is the way in which the UK withdrew from EFTA, because there are significant distinctions between the EFTA regime and the 1972 Act. The most crucial of which is that the EFTA Act, which I won't take your Lordships to but it is in volume 35, at tab 480, and it is supplementary MS page 4, 35/480, supplementary MS 4, that Act does not create, does not create, in national law, rights which are incorporated from international law. It doesn't incorporate any rights created on the international plane, far less give them priority; there is no equivalent of section 2(1), section 2(4) or section 3(1).

  • It reads a bit like a sort of implementation of a directive, almost.

  • What it does is it gives power to the minister. It gives the minister power to make regulations, no more than that, and therefore I say that a decision to notify under EFTA does not raise, cannot raise, the same issues as to destruction of statutory rights as in this appeal, and of course it is also unrealistic, I say respectfully, to look at the EFTA notification in isolation. We were leaving EFTA because of course we were joining the EU.

  • Did the statutory powers conferred by the Act relate to the fixing of duty levels?

  • That was not a power that was derived from the general Customs and Excise Act but from that specific Act.

  • No, it was a specific power to deal with the tariffs that were applicable, and your Lordship will see it at 35/480.

    My Lords, my Lord, Lord Carnwath referred to the Canadian case of Turp and my friend Mr Eadie took the court to it this morning. Can I ask your Lordships to go back to it at volume 26, tab 308 and it is MS page 8950, volume 26. Tab 308, MS 8950. And I take the court to it just for this reason. If the court would go, please, to MS page 8953, the court will see paragraph 8 of the judgment, this was a judgment at first instance of the federal court.

    At page 8953, paragraph 8, the judge, Mr Justice Simon Noel, referred to an earlier judgment on the relevant Act, the KPIA, and at the end of paragraph 42 of that earlier Act, which the judge refers to, we see the final sentence:

    "If Parliament had intended to impose a justiciable duty upon the Government to comply with Canada's Kyoto commitments, it could easily have said so in clear and simple language."

    That judgment, see paragraph 9, was upheld by the federal court of appeal and the Supreme Court refused leave to appeal.

    So the Act which was being displaced by the prerogative, was an act which imposed no justiciable duty upon the Government. So it was not an act that created any obligations at all in domestic law, and therefore it doesn't assist my friends to show that it is open to the appellant by the exercise of a prerogative power to displace legislation which does, 1972 Act --

  • I agree it doesn't deal with that point, because it didn't create a body of law, which was your main point, but I think it does assist in the sense that, insofar as you are relying on frustrating some more generalised intention upon, then here is a case that the executive is using --

  • It is a very weak contention by Parliament, if it didn't intend even to create a justiciable duty in domestic law, it is the statutory scheme that is at best exhortatory, no more than that.

  • We don't want to get into a debate about that. But it seems to me important to draw a distinction -- I mean, some of your cases are talking about frustrating intentions, which is rather woolly in this respect, whereas I think the much better way of putting your case is the way you put it earlier on in response to my Lord, Lord Sumption about interfering with a body of law, a source of law.

  • I take your Lordship's point but that is my point on Turp.

    Looking at all the material, and the court has all the material, we say there is no relevant prerogative power in this case. The prerogative cannot be used to remove rights and duties created by Parliament, far less to remove a whole body of law. That is our second submission.

    Our third submission is that in any event, there are relevant principles of statutory construction. The consequence of those principles is that the appellant must show, the burden is on him, he must show that Parliament has clearly conferred on him a power to defeat statutory rights and duties, to defeat a body of law that Parliament has created.

    There are three relevant principles to which we draw the attention of the court, or more accurately we remind the court about. The first principle is the principle applicable in relation to Henry VIII powers, that is a delegated power conferred by Parliament on a minister to use subordinate legislation to amend or repeal primary legislation.

    The court has looked at this, the court is very familiar with this, the court has looked at it recently. The case is the Public Law Project case, it is volume 23, tab 277. Volume 23, tab 277, MS page 7791.

  • The Queen on the application of Public Law Project v Lord Chancellor, and because the court is so familiar with this, I can take it very quickly. The court in the judgment of my Lord, the President, speaking for the court, addressed the principle at page 395, MS page 7799, paragraph 27, where my Lord cited with approval and applied the observation of Lord Donaldson, Master of the Rolls, in McKiernon. This is just under letter C:

    "Whether subject to the negative or affirmative resolution procedure, subordinate legislation is subject to much briefer, if any, examination by Parliament. It cannot be amended ... the duty of the courts being to give effect to the will of Parliament ... it is in Lord Donaldson's judgment legitimate to take account of the fact that a delegation to the executive of power to modify primary legislation must be an exceptional course and if there is any doubt about the scope of the power conferred upon the executive or upon whether it has been exercised, it should be resolved by a restrictive approach."

    Our submission is that the courts will be even more reluctant to recognise a power in the executive to defeat statutory rights or a statutory scheme, when Parliament has conferred no such express power on the executive. Ministers cannot sensibly claim to have a greater power to interfere with primary legislation by use of the prerogative than they would have if Parliament had expressly conferred a Henry VIII power. That is the submission.

    The second principle is the principle of legality. And I won't tire the court by going through the authorities. They are very, very familiar. Morgan Grenfell, and ex parte Pierson in particular. Morgan Grenfell is core authorities 2, tab 17, it is MS page 570, Lord Hoffmann at paragraph 8 approving what he had said in the Simms case; and Pierson is volume 9, tab 78, MS page 3093.

    The point is this. Since the courts presume that Parliament did not intend itself to defeat or frustrate fundamental statutory rights, or basic common law principles, unless Parliament has clearly so provided, all the more so, I say, will the courts conclude that Parliament did not intend to authorise the use of prerogative powers to defeat important rights and principles created by Parliament, unless Parliament has itself clearly so provided.

    The test cannot be a looser test, where one is concerned about the powers of the executive, than where one is concerned as to what Parliament itself intended.

    The third principle that we draw attention to is the exclusion of implied repeal. The status of the 1972 Act, and indeed what it expressly says in section 2(4), is that the doctrine of implied repeal is excluded. Only a clear later statute will be recognised by the court as demonstrating a parliamentary intention to repeal or amend the 1972 Act, or do something inconsistent with it.

    That of course was the principle in Factortame, that is what Factortame was all about and Mr Eadie accepts the constitutional status of the 1972 Act and he accepts the common law principle and the principle in section 2(4), that the 1972 Act is not subject to implied repeal, but he says this tells us nothing of relevance to the present case.

    The answer is given by the divisional court at paragraph 88 of its judgment, being in core volume 1, at MS page 11796, if I could just take the court to what the divisional court said at paragraph 88, it is the end of paragraph 88. The divisional court says this:

    "Since enacting the ECA 1972 as a statute of major constitutional importance, Parliament has indicated it should be exempt from casual implied repeal by Parliament itself. Still less can it be thought to be likely that Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative power."

    I can't improve on that.

  • Does this play into your argument on the 2015 Act as well?

  • Certainly, my Lord, yes.

  • It seems to me you may be able to make something of this point insofar as it says the 2015 Act impliedly changes the landscape.

  • Your Lordship is absolutely right. If these principles, as we submit, are relevant in this context, then one does need the clearest of statements by Parliament in the 2015 Act, in order to show that Parliament intended to authorise the Secretary of State by the use of the prerogative to remove, frustrate, nullify that which Parliament had created, absolutely so.

  • I suppose it depends how one sees the 1972 Act. If one sees it as impliedly imposing some sort of fetter or clamp, then it might be easier to see the 2015 Act as removing it, but if we see it through your lens, then the argument on the 2015 Act may have more force.

  • Well, I say those principles are applicable, those principles of interpretation, of construction, they themselves are important constitutional principles, and what they come to is that they mean that it is necessary for my friend to show that there is some clear parliamentary indication of an intention to authorise the Secretary of State to do what he is otherwise not entitled to do; that is how I put it.

  • That is my third point. My fourth point is to move to the purpose and the contents of the 1972 Act itself.

  • We say, if one looks at the purpose and the contents of this legislation, far from there being a clear parliamentary statement that the rights could be removed by executive action, the position is to the contrary; there is no clear statement to that effect; and if I need to, I say there are a number of strong indications that Parliament intended that the appellant did not enjoy any such power.

    Our first point under this head is we say that the appellant has failed to recognise the nature and the significance of the 1972 Act in domestic law. It has failed to recognise the new source of law that Parliament has approved and authorised; this is, to quote what the European Court of Justice said in the van Gend en Loos case, it is a new legal order; MS page 764, I don't ask the court to turn it up, MS page 764, it is core authorities 5, tab 24.

    The new legal order as implemented by the 1972 Act has at least three important characteristics. The first of them is that the new legal order agreed at international level does not just create relations between states, or even as with some international treaties, the European Convention on Human Rights is an example, it does not merely confer rights on individuals in international law. My Lord, Lord Mance explained for the Court of Appeal in the Ecuador case that international treaties do sometimes confer rights on individuals at the international level. That authority is core authorities 4, tab 290, MS 8295.

    The new legal order is far more than that. The new legal order, as recognised by the 1972 Act, recognises a body of rights created at international level which take effect in national law and which national courts are obliged to protect and enforce.

    That is the first feature of this new legal order. The second feature is that those rights and duties created in national law take priority over inconsistent national law and they take priority whether the inconsistent national law was enacted previously or subsequently. That is section 2(4).

    There is no other example that I am aware of of that in our domestic law.

    The third feature of this new legal order is that the proper interpretation of the scope and meaning of these rights and duties created at international level but now part of the national law, is that their scope and meaning is conclusively determined by a court of justice in Luxembourg whose rulings take priority over those of domestic courts, however senior. That is section 3(1).

    Again, there is no other example of that in domestic law. These features of EU law were established well before we joined the EEC. I have mentioned van Gend en Loos, volume 2, tab 24, MS page 754. There is also the Costa case, Costa v ENEL, core authorities 5, tab 96, MS page 3794.

    My Lords and my Lady, there is an irony to these legal proceedings, and the irony is that the new -- the features of the new legal order and the constitutional status of the 1972 Act is both one of the main reasons why the appellant wishes to notify under article 50(2), he wishes to remove the powerful effect of EU law in domestic law, but it is also, I say, the reason why the appellant cannot so act without the authorisation of Parliament. It is Parliament itself which has brought this new legal order into effect.

    The court has seen -- I won't go through it -- that when we joined the EEC, what happened was that the 1972 Act was brought into force before the treaty of accession was ratified and we have dealt with this at paragraph 7 of our written case, MS 12387, and I will not take further time on that but we do say, and the court has put questions to Mr Eadie on this subject, we do say that just as Parliament needed to legislate before we joined, so parliamentary authorisation is required before steps are taken to remove those rights from domestic law.

    There is one other statutory provision that the court may think throws some light on this, and that is section 18 of the European Union Act 2011.

    If your Lordships, please, would go to core authorities, volume 1, at tab 6, it is MS page 153. Core authorities, volume 1, tab 6, the European Union Act 2011, MS page 153.

  • Your Lordships and your Ladyship will see section 18 of the European Union Act 2011, and the heading is of significance:

    "Status of EU law dependent on continuing statutory basis".

    Not dependent on whether prerogative powers may or may not in the future be exercised; it is dependent on "continuing statutory basis".

    Then the substance:

    "Directly applicable or directly effective EU law [that is the rights, powers, liabilities et cetera] referred to in section 2(1) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised as available in law by virtue of any other act."

    Now, I can see that that begs questions, but nevertheless it is a strong indication that Parliament thought and was reaffirming that it is Parliament that is in control here. That is the purpose of that provision. It is very difficult in my submission to reconcile that statement by Parliament with a contention that no -- that all depends on whether or not ministers may decide to exercise prerogative powers.

  • It is interesting to read the footnote which tells you, although having criticised you impliedly for reading what was in Parliament, here I am looking at what is in Parliament.

  • Parliament is sovereign.

  • It is a public declaration of dualism, is it?

  • It is, but it is a recognition that as part of the dualist theory, Parliament has acted, and once Parliament has acted, only Parliament can remove that which Parliament has incorporated into domestic law. That is my submission.

  • That is your submission; it depends entirely on whether the whole basis of the 1972 Act is that it lasts as long as we are members, which we are no doubt going to come to.

  • I am coming to the substance of it.

    I am submitting first of all that if one looks at what the 1972 Act was intended to achieve, it was intended to achieve a constitutional revolution in legal terms, and that it is inherently implausible that Parliament intended in 1972 when it created this constitutional reform, when it recognised this new source of legal rights and duties, that it intended that it could all be set at nought by the exercise of prerogative powers.

  • The purpose of section 18 was presumably to pre-empt the argument that the primacy of EU law meant that you could never withdraw.

  • We looked at it in the HS2 case and we interpreted it as effectively ensuring that the van Gend en Loos/Costa v ENEL doctrine did not form part of UK constitutional law.

  • I say it is an assertion of parliamentary supremacy, that Parliament has created and Parliament may take away, and that is the value that I place on it.

  • It was probably not dealing with withdrawal, was it, because by then the treaty of Lisbon had given a base for withdrawal, or the base anyway. It was probably designed to demonstrate that even if we remained a member, it was still open to Parliament to do what it wanted.

  • Now, that might lead to a breach at the international level and trouble with the Commission and others but that is the --

  • I recognise the limits of the submission, but I say it is at least consistent with my submission that Parliament regards itself as in charge in this area.

  • You can certainly say that it gives the weight to Parliament as the progenitor of the rights, rather than treats Parliament as a conduit at any rate.

  • Indeed, that is what I say.

  • It treats Parliament as the source rather than the communicator as it were.

  • Parliament as the source?

  • As the source rather than the communicator or the conduit.

  • Indeed.

    Reference has been made on a number of occasions to the decision of the appellate committee in the Robinson case, the Northern Ireland case. Perhaps we should look at it. It is core authorities number 4 and it is tab number 81 and it is MS page 3272. The relevant passage that has been referred to in the speech of Lord Bingham is at 32 -- it is paragraph 11, which appears on page 3280, thank you. The relevant part of it that has been referred to is in the fifth line. It is talking about the Northern Ireland Act 1998, of course:

    "The provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody."

    Our submission is that the values inherent in the 1972 Act were a commitment by Parliament, unless and until Parliament changed its mind, but a commitment by Parliament to the inclusion of EU law as part of domestic law. Those are the values that Parliament was signing up to in 1972, with all the profound legal consequences which that entails, as seen, not just in the 1972 Act but in any other, any number of other pieces of legislation which Parliament has enacted. There is a reference, my friend Mr Eadie drew attention to the statement by Lord Bingham as to flexibility. I think it also appears in that paragraph.

  • At the end of paragraph 12.

  • I am grateful. Flexible response. Yes, flexible response. Our submission is the values are very clear in the 1972 Act. I say that however flexible our constitution, it cannot be bent so that ministers are able through the exercise of the prerogative to take away that which Parliament has created.

    The same point, I submit, can be made by reference to the Axa case. The Axa case appears in volume 4, it is the main authority of volume 4, and it is at tab number 31, and it is MS page 1205, in the judgment of Lord Hope of Craighead, with whom the other members of the court agree.

  • It is paragraph 46 in Lord Hope's judgment, talking about the Scotland Act and it is simply the passage where Lord Hope says:

    "The carefully chosen language in which the provisions are expressed is not as important as the general message that the words convey."

    Then he deals with the particular matters, and I say again, the general message that is conveyed by the 1972 Act is very clear indeed as to Parliament's commitment to the new source of law.

    It does not advance the appellants' argument for him to point out that as part of the EU legislative processes, the Crown, through ministers, has a role as a member of the Council of Ministers. Parliament recognised when it implemented EU law into domestic law, it recognised that EU law confers a legislative competence on the institutions of the EU, and as part of that, through the Council of Ministers, of course the representatives of the Crown, Her Majesty's Government have that legislative competence, or rather they play a part in the legislative competence of the Council of Ministers, but in so acting, ministers are exercising powers under the treaty framework which Parliament adopted and gave effect to by section 2(1) of the 1972 Act. So I don't accept that that can assist my friends.

    Now, we have addressed for our part the contents of the 1972 Act at paragraphs 48 through to 65 of our written case. It begins at MS page 12415.

  • But can I take you, the court, through these provisions briefly.

  • The starting point is the long title --

  • -- to the 1972 Act:

    "An act to make provision in connection with the enlargement of the European Communities to include the United Kingdom".

    Now, our point is that it cannot be consistent with the long title, speaking as it does of the enlargement of the EU, for the executive to use prerogative powers to reduce the size of the EU by taking the United Kingdom out. I say it is no answer for my friends to say that the long title says nothing about withdrawal. That is precisely the point. Parliament decided to make permanent provision in national law consequent on the UK becoming a member of what is now the EU, permanent, that is, unless and until Parliament decided otherwise.

    Nor, in my submission, is it an answer for Mr Eadie to say, this is an argument based on Professor Finnis' lecture, that the long title says "in connection with", and not "for and in connection with", and the court has seen the contrast, the point made about the contrast between the 1972 Act and, for example, the Barbados Independence Act.

    We for our part respectfully agree with the point that was made yesterday by my Lord, Lord Mance, that the 1972 bill was being considered against the background of earlier parliamentary debates and votes on the very subject of whether it was appropriate for this country to join the EU, and we have put on the desks of your Lordships and your Ladyship, I hope it has arrived, the passage from the second reading of the 1972 bill.

  • This is Mr Enoch Powell, is it?

  • It starts, Mr Geoffrey Rippon, who is the Chancellor of the Duchy of Lancaster, who speaks for the Government, and then Mr Enoch Powell raises a point of order. The point of order goes on a bit on and then at column 269, your Lordships and your Ladyship will see, at the bottom of 268, Mr Rippon begs to move that the bill be now read a second time. At column 269, in the second, third and fourth paragraph, Mr Rippon sets out the history. The only reason we have put this before the court is it confirms what was mentioned by my Lord, Lord Mance.

  • It takes place against the background of the previous debate --

  • -- and decisions of the House about the principle of membership.

  • Yes, it just gives the relevant dates. It might be a useful source of the material.

  • Can it not be said that, insofar as this "for and in connection with" take goes anywhere, insofar as it does, that until this Act was passed, it is clear that the accession was not going to be ratified, and to that extent, it would have been appropriate to say "for and in connection with"?

  • Well, yes, but the ratification, of course, takes place on the international plane.

  • I know, but nonetheless it was not going to happen unless the bill became an act.

  • Therefore, whatever may be the background, the "for and in connection" point, for what it is worth, still has some mileage; that is all I am saying to you.

  • Yes. Well, my answer to that, my Lord, is that everybody understood and appreciated that the parliamentary approval by the Act would be followed; that was what Parliament intended. It would be followed by a ratification, and I say the point does not answer -- Professor Finnis' point, with great respect, does not answer the relevant question. The relevant question is this: once Parliament has recognised that all -- that this new legal order should be introduced into domestic law, can Parliament have intended, really intended, that the executive could thereafter defeat that which Parliament had created, by the act of withdrawing the UK from the EU without parliamentary authorisation. That is the real question. And I say --

  • I understand that is your point, yes.

  • Can I ask you, I mean, I tried to sort of slow Mr Eadie down when he was spending a lot of -- speed him up actually, he was spending a lot of time on this, and he was rather stopped. I, for my part, don't see how helpful it is, trying to look at the intention of Parliament in 1972. There was no doubt that they were incorporating a new legal order in the United Kingdom, and that was the intention. No one was contemplating the possibility of withdrawal and there was no provision in the treaty for withdrawal.

    Presumably, if anyone had asked, they would have said we can do it under the Vienna convention but obviously we will have to go through the process of negotiation, and at the end of all that we will pass whatever legislation is needed. You know, that is fairly obvious, but it doesn't really help one as to how one looks at the matter when many years later, one has this Article 50 being brought in, which creates a completely new situation, because it enables a notice to be served with this cut-off. So how helpful is it to look at 1972 to find out what was intended in 2008?

  • It is not the position of the appellant, nor is it our position, that the United Kingdom could not leave the EU in 1973 or 1974. That is not the position.

  • No, but the point is whether it could do it by prerogative or whether it would need an Act of Parliament, and I have no doubt that, in 1973, there would have been a parliamentary debate, the Government would have proceeded and it would have been negotiated and at the end of it all there would have been an Act of Parliament.

  • Article 50 in my submission, the existence of Article 50, does not change the position as to prerogative power.

  • We will come to Article 50.

  • Can I just make the submission, my Lord. Since your Lordship asked the question, the reason why Article 50 does not alter that is because we all agree that Article 50, although it gives a power to leave the EU, it refers to the constitutional requirements of the member state and we all agree that that is a matter for domestic law. It doesn't alter that question.

    Therefore, I say, the real question, the two real questions, what was the position in 1972 as to whether Parliament can have intended that what it had created could be set at nought by the existence of the prerogative, and whether or not anything that has happened since any of the later legislation, to which I will come, has altered that position. But I don't accept, with respect, that the existence of Article 50(2) of itself can possibly make a difference to --

  • That is a debate we are going to have when you get to it, and no doubt I am obviously very interested to see how you put that, but all I am say is it is not very surprising to find the elements in 1972 which you are highlighting, that was reflecting the position at the time.

  • But that is still the Act. It is the Act of Parliament which remains which creates and continues the legal order by which these important rights and duties are part of domestic law, and therefore I say it must be fundamental to analysis what is the purpose of the Act, not just when it was created but going forward and what does the Act say.

  • Your argument is that it establishes a starting point and the question is whether there has been any departure from that starting point.

  • Yes. I am grateful, my Lord, yes, and I say, for the reasons I have given, there has to be a clear indication of a departure, not anything less than that.

    Section 1, we address section 1 of the 1972 Act in our written case at paragraphs 59 to 63, MS 12421. I say it is very important that section 1, subparagaph (2) provides that, if there is to be an amendment to the treaties, it requires a new treaty; or rather there is a requirement under the Act that the new treaty has to be included in section 1(2) if it is to have any effect in domestic law. It is not left to the executive to take such action as it sees fit on the international plane. What it does on the international plane is irrelevant to domestic law unless Parliament itself has included the new treaty as part of section 1(2), and we have set all this out in paragraph 60 of our printed case and I am not going to take time on that, unless it would assist.

    I simply make this point, which is we say the core point. It would really make no sense for an Act of Parliament to be required, as it is, to authorise an amendment to section 1(2), to add a new treaty, when this will alter domestic law, but for no Act of Parliament to be required if ministers are to notify that we are going to leave the EU and destroy the whole of the structure. That makes no sense at all. It means that parliamentary involvement is required for the lesser but not for the greater. It is required for an amendment but not for a destruction.

  • It is interesting if we are trying to understand the context in which the 1972 Act was enacted, the passage you gave us from Hansard goes on with the responsible minister quoting the previous Prime Minister to tell us that:

    "It is important to realise that if the law is mainly concerned with industrial and commercial activities, with corporate bodies rather than private individuals, by far the greater part of our domestic law would remain unchanged."

    That is then endorsed in the next couple of paragraphs. It is been enacted in a very different world.

  • I entirely understand. It is a different world but perhaps what is relevant, following on from what my Lord puts to me, is that the scheme of the Act was not changed. It remains the case, and remains the case today, that if there is to be an alteration of the treaties, that has no effect in domestic law unless section 1(2) is amended.

    There is one qualification to that and it is the qualification that Article 48.6, which your Lordships saw, 48.6 of the TEU, provided a simplified revision procedure. It was obviously thought in Brussels that it should be easier to amend the treaties and Parliament responded to that, and your Lordships saw this, and your Ladyship saw this, in section 6(1) and (2) of the 2008 Act.

  • Parliament's response was to say, if the simplified amendment procedure was used, then you didn't any longer need primary legislation to bring that change into domestic law. It was sufficient to have a motion in both Houses. But nevertheless you still needed Parliament to act and it was because Parliament thought that a motion sufficed that this change occurred.

  • Lord Pannick, I am a little bit puzzled about your saying an Act of Parliament was required to add to the treaties, because I am looking at section 1(3) --

  • But that is different, my Lady.

  • That is different, is it?

  • That is different. It is different because that deals with ancillary treaties. There a distinction, if we go to it -- let me find the core authorities. Is your Ladyship looking at tab 2 or tab 1?

  • I am looking at tab 1, the enacted version.

  • Your Ladyship will see that section 1(2) concerns "the Treaties", capital T, and at the end of section 1(2) it says, after original B:

    "... and any other treaty [lower case] entered into by any of the communities with or without any of the member states or entered into as a treaty [lower case] ancillary to any of the Treaties [capital T] by the United Kingdom."

    Then (3) is defining these ancillary treaties:

    "If Her Majesty by ordering council declares the treaty [lower case] specified in the order is to be regarded as one of the community Treaties [upper case] as herein defined, the order shall be conclusive that it is to be so regarded."

    The explanation of that is that there are treaties, lower case, which are ancillary to the main community Treaties, but what has happened on all occasions when the main Treaties have been amended, is that they have been the subject of express parliamentary approval under section 1(2) before ratification. That is the explanation of the distinction between the --

  • But what you are saying is that a new Treaty, with a capital T, has been approved by an Act of Parliament?

  • Yes, all of them -- Lisbon, Maastricht. All of them have been approved by Act of Parliament. The caveat to that is the power under Article 48.6 under the 2008 Act where there is the simplified amendment procedure, but that of course existed from 2008 until it was repealed in 2011.

    So there is that distinction but, in any event, what this shows is parliamentary control. However one puts the point, whatever the overlap or the distinction between 1(2) and 1(3), the point I make is that Parliament in 1972, and ever since, has required parliamentary control if there is to be any variation in treaties. Of course --

  • You are agreed with Mr Eadie on that. You both say there is a great scheme of parliamentary control here. He says that shows that what is not specifically mentioned is left unfettered; you say that in the spirit of the thing you have to carry it through to all powers. But you are both agreed on the construction of the Act.

  • We are, and I respectfully commend my approach to your Lordships.

  • I rather thought you might.

  • Which will not surprise your Lordship, because, I say, it would be quite extraordinary if Parliament had intended that parliamentary control for variation was required but had not intended there to be any parliamentary control in respect of nullification.

  • I see the force of that, but it could be said that it is one thing to say "We will join a club on certain terms, and we want to keep control of what those terms are, but if you want to withdraw that is fine."

  • Yes, it could be said, but for the reasons I give I say, with great respect, that unrealistic that Parliament can have intended to maintain such control but nevertheless to have intended that the whole scheme should be open to nullification by the minister without prior parliamentary authorisation. That is the way I put it and that was the approach that the divisional court adopted.

    The divisional court's reasoning, particularly on section 1(3), appears at paragraph 93.8 of their judgment. It is MS page 11800 and it is paragraph 93.8 of the judgment. It is the end of 93.8, looking at 11800, the last four lines, they says:

    "Moreover, the fact that Parliament's approval is required to give even an ancillary treaty made by exercise of the Crown's prerogative effect in domestic law is strongly indicative of a converse intention that the Crown should not be able by exercise of its prerogative powers to make far more profound changes in domestic law by unmaking all of the EU rights set out in or arising by virtue of the principal EU treaties."

    That is the point. Parliament should not be assumed to have strained at a gnat that has swallowed a camel. That is the point.

    I am grateful to Mr Thompson, if one looks in the consolidated version of the 1972 Act, it helpfully sets out all the amendments to section 1(2), and indeed all the amendments to section 1(3). If the court is interested in that, you will find all the detail there set out.

    So that is section 1. Then the next indication is the heading to section 2.

  • The heading to section 2 is "General implementation of treaties", and the treaties as I have indicated are those specified in section 1(2) and I say it would conflict with that heading as an indication of purpose if the minister could use prerogative powers to remove the UK from the treaties, so that the rights and obligations they create are no longer implemented in national law. This is concerned with implementation in national law.

    I say it is no answer that the treaties include the TEU which contains Article 50. Mr Eadie stated in answer to a question from my Lord, Lord Mance, he stated, my friend, that Article 50 "is not part of domestic law and it does not have direct effect", he agreed:

    "Article 50 requires notification to be in accordance with the constitutional requirements of the member state. It does not alter those constitutional requirements."

    Therefore it cannot assist the Government's case, in my submission.

    Section 2(1) of the 1972 Act, the phrase "from time to time" recognises that the rights and duties consequent on EU membership will change. They will evolve. They will evolve through the acts of the EU institutions, the Parliament, the Council, the Commission, the Court of Justice, and in section 2(1) is simply intended to give effect to this feature of EU law.

    My Lord, Lord Sumption put to Mr Eadie, my friend Mr Eadie, that section 2(1) is concerned with changes to the content of EU law, it is not concerned with nullification of the whole statutory scheme and we say that is so. My Lord, Lord Reed put to my friend that his difficulty is he is proposing to make the conduit seen in section 2(1) redundant, and we would respectfully agree.

    My friend expressly confirmed in answer to my Lord, Lord Mance, that the words "from time to time" do not mean membership from time to time, and we respectfully agree.

  • Could I just ask you to clarify this. Article 90, the provision for notice, Mr Eadie I think says, well, that is an international law provision and therefore does not need a base in domestic law and doesn't have one.

  • Did your Lordship say Article 90?

  • Article 50, sorry.

    But if you do need a base in domestic law, why doesn't section 2 provide it?

  • My Lord, because, as my friend Mr Eadie accepted, Article 50 has no direct effect. It is not part of domestic law.

  • But that is on his premise.

  • It is my premise as well.

  • This all part of the prerogative. You cannot have it both ways. If you say you need a domestic base for it, why does --

  • It is nothing to do with the prerogative, in my submission. It is a question of EU law, whether Article 50 is a provision of EU law which has effect in national law, and it only has effect in national law if it is directly effective and it is not a directly effective provision, it is not intended --

  • I don't think you understand me.

    If on your premise you need to find a UK domestic law statutory base for it, then if you look at section 2(1), arguably this a power created by EU law which is effective. Obviously, if you don't need a domestic law base for it, it doesn't matter but if on your premise you do, why is section 2(1) not such a --

  • First of all, it is no part of the case against me --

  • I understand that, I would just like to understand it myself, because it has been raised in some of the commentaries.

  • It is no part of the case against me that section 2(1) provides a statutory basis for notification and my answer is that that is correct and it is correct not least because Article 50 is not part of domestic law, but also because Article 50 does no more than recognise that it is a matter for the domestic constitutional requirements of the member state concerned and therefore Article 50 of itself cannot provide any basis, if one does not otherwise exist, in domestic law for the notification. Article 50 is completely neutral as to the domestic law basis and power for making the notification. It doesn't assist.

    That, as I understand it, has been accepted by the Government at all stages and I say they are plainly right to accept that. That is my answer to your Lordship.

    So that is section 2(1), and we say that section 2(1) is intended to implement the rights under the treaties. The rights from time to time created or arising under the treaties cannot in my submission sensibly mean the absence of rights under the treaties.

    That may be enough for today, or probably more than enough for your Lordships for today.

  • Could I just ask one question, which is purely for my own personal benefit. I don't know if anybody else would like to have a printed copy of the transcript, but speaking for myself I should like one if it were possible.

  • Certainly. I am sure we can facilitate that.

  • I dare say, all for one and therefore one for all. 11 each -- or one each, rather.

  • Preferably with four pages on one.

  • Yes, could it be the mini one, with four pages printed on one. I think we would appreciate that. If you could let us have 11.

  • My Lord, I think I have another hour and a half and I will ensure I finish within that time.

  • That is very good of you. Thank you very much, Lord Pannick.

    In that case the court is now adjourned and we are due to resume again tomorrow morning at 10.30, when your argument, Lord Pannick, will continue.

  • Thank you very much. Court is now adjourned.

  • (The hearing adjourned until 10.30 am the following day)