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

  • Good morning, my Lady and my Lords, I was completing my fourth submission which is that the 1972 Act, contents and purpose, contains no clear statement that the executive does have a prerogative power to nullify the statutory scheme and indeed if I need to go this far, I say, having regard to the statutory presumptions, that is the Henry VIII clauses, legality and implied repeal, the Act clearly indicates in my submission that the executive does have no such power.

    I had reached section 2(2) of the 1972 Act. We deal with that in our written submissions; it is paragraphs 56 to 57, MS 12419. I am not going to take time on repeating that.

    The next provision is section 2(4) which I do rely on. I say that since Parliament expressly stated that this Act takes priority, even over a later statutory provision -- therefore there is no doctrine of implied repeal -- Parliament is most unlikely to have intended that the scheme it was creating could be set aside by a minister. That is the submission.

    Then we have section 3(1). We deal with that in paragraph 58 of our written case, MS 12420, and I don't want to add to that, save to refer to the divisional court's judgment, paragraph 93.7. I don't ask the court to turn it up. It is in the judgment, MS 11800, paragraph 93.7, where the divisional court says that if all the treaty rights can be removed by the executive using prerogative powers, section 3(1) would make no sense.

    I say that the divisional court rightly concluded, rightly concluded, it is paragraph 94 of its judgment, MS 11801, that the clear implication from all these provisions is that Parliament intended that the Crown did not have prerogative power to take action on the international plane to destroy that which Parliament was creating.

    My Lady, my Lords, before I move on to my fifth point, can I briefly return to three matters which were raised yesterday afternoon which I promised to deal with. The first is my Lord, Lord Reed's question about authority that Hansard can be relevant to identifying statutory purpose, and not simply a Pepper v Hart type exercise.

    I think we have put on the desks of your Lordships and your Ladyship a Privy Council case which I don't ask your Lordships to go through. It is called Gopal. And it is paragraphs 3 and 7 which I say support my contention. It is nothing to do with human rights.

    However, I should also draw to the attention of the court the judgments of the appellate committee in the Spath Holme case volume 8, tab 75, please don't turn it up, but it is volume 8, tab 75, MS 2991. It is [2001] 2 Appeal Cases, and I do accept there the majority of the appellate committee said Hansard could not be used to identify the purpose of an act. So I draw attention to that.

    What I would say, however, is that if in this case this court is going to look, if it is going to look, at what ministers said about the 2015 bill, it would be wrong, in my submission, to exclude what Mr Lidington said in the House of Commons; it would be an artificial exercise to look at some of the statements but not what was said on the floor of the House of Commons. That is my submission and that is the first point.

  • I think there is further authority. I remember Lord Steyn dealing with this point and there is certainly another case --

  • Yes, Lord Steyn is 2002, I think, it is the local government case your Lordship may have in mind.

  • Saying you could look at -- is there inconsistency between that and Spath Holme? On the face of it, it seems to be.

  • If it matters, I would say the law has moved on, with great respect, since 2001. Your Lordships and your Ladyship, of course, have many important constitutional issues to decide in this case; I am not suggesting that the court adds to the list the rather important question, the extent to which Hansard can be used in order to determine the scope or mischief of legislation.

  • It may have considerable practical importance in more cases than the points we are being asked to decide.

  • I think we might say that there is a certain air of unreality, if we are considering what effect the 1972 Act had and what purpose the 2015 legislation had, to ignore what was said about that.

  • I respectfully agree. The point I make is the point I was making to my Lord, the President, that my case is: look at what the Act actually said; but if the court is to be persuaded by my friends for the appellant that one should look at other material, it is quite artificial to look at some of the other material but not at what Mr Lidington expressly said on the floor of the House.

  • Yes, I mean, the only trouble with looking at what was said on the floor of the House, and as you say, we don't want to go too much into this, is what a minister or somebody else says does not necessarily represent the reason why people vote, or what they believe when they vote.

    It is like going into what people say about their contracts when construing their contracts, and that way madness can be said to lie, because you then start looking at everything said in Parliament and balancing up -- it can be a very treacherous course.

  • It can. Of course the point being made by the appellant is what the Government's intention was, what the Government was putting forward because Mr Eadie draws attention, footnote 4, to what ministers said from time to time: this was our intention.

  • That is what Government said but in the end that is -- highlights the problem. We are here concerned with two separate entities, the Government and the legislature.

  • I entirely accept that, and that is why I put the point, I hope very modestly, it is not my submission, if the court is being told by the appellant: look at what the Government's intention was; it is a bit more blurred than that. But my submission is what the court should focus on, is what the Act actually said, which is not ambiguous in any way; it is a limited act for a very specific, very important purpose. I don't in any way seek to denigrate the purpose; to hold a referendum is a very important matter. My submission is, however, it has nothing whatsoever to do with the issue before the court, which is who enjoys the power to notify; is there a prerogative power once the referendum has taken place; and that is what I invite the court --

  • I suppose what ministers say might be relevant as creating some sort of legitimate expectation as to what they are going to do, but that tells you nothing about the machinery with which they are going to do it.

  • Absolutely, and this case is nothing to do with legitimate expectation, and any such argument would be exceptionally difficult to sustain.

    That is the first additional point. The second point is I promised to answer my Lord, Lord Mance's question about the debate in the 1970s. My Lord said, what was I talking about, this debate in the 1970s on whether Parliament could reverse the 1972 Act. What I had in mind is the Blackburn case, and if your Lordships and your Ladyship look -- I don't ask the court to turn it up -- at core authorities 2, tab 11, it is MS 302, Lord Denning at page 305 H adverts to what was then a contemporary debate: could Parliament itself go back on what it had enacted?

    All I was saying to the court is, it is not my understanding that that is nowadays a point that causes concern, nor could it in the light of section 18 of the 2011 Act, if it was otherwise a point of concern.

    The third point I promised to -- I need to come back to is my Lady, the Deputy President, asked about the acts of Parliament which have amended section 1(2) of the 1972 Act to add the new treaties. The court will find what I hope is a helpful annex to our written case. It is MS 12438, and there we set out the relevant acts which have amended section 1, subsection 2 to take account of the new treaties, Maastricht, Amsterdam, Nice, Lisbon and all the others.

    What the annex shows is that all of these acts amending section 1(2) were in fact enacted before Parliament ratified the relevant treaty and that is because as the court already heard --

  • Before the Government ratified.

  • Your Ladyship is absolutely right, before the Government ratified, I apologise, and that is because Parliament needed to amend domestic law before the new EU law treaty came into force which would alter domestic rights.

  • Just like the 1972 Act, the Government signs, Parliament, as it were, enacts and then the Government ratifies.

  • Precisely so. If one looks at these acts, some (Inaudible) parliamentary approval because of the post 1972 legislation, the 1978 Act and the others.

  • Some of them need parliamentary approval because they are being added to section 1(2), because they affect domestic law rights. Some of them need parliamentary approval for both reasons, so if one looks, for example, at core authorities volume 1, tab 3, the court will see the European Union (Amendment) Act 2008.

    This is the one that addressed the treaty of Lisbon and if the court goes -- sorry, it is MS 117, MS 117, core authorities 1, tab 3. If the court, please, would turn to MS 118, at the top of the page, section 2, it is not set out in detail, but the court can see what it does, is it amends the 1972 Act by adding a new section 1 (Inaudible) and if the court then looks on the next page and looks at section 4, this Act does another job. What it does is it approves the treaty of Lisbon for the purposes of the 2002 Act, that is parliamentary approval, as it says, of treaties increasing the European Parliament's powers.

    So each of the two different functions is addressed separately by Parliament, and there are some treaties for which parliamentary approval was not required under the post 1972 legislation, but it was still necessary to add the treaty to section 1(2) of the 1972 Act. If the court would please look at volume 19 of the materials and look, please, at tab 221, which is MS page 6463.

    The court will see that that treaty, which was the treaty for accession of Spain and Portugal, that was added to section 1(2) of the 1972 Act, but there was no need for approval under the post 1972 legislation as it then existed, so Parliament is very careful to treat separately the two distinct areas that we are here concerned with.

    So that is the 1972 Act. There are, of course, many other relevant statutes in many areas of life, competition law, communications law, equality law, environmental law, and many others, at least some of the terms of which would be frustrated if the appellant terminates the UK's membership of the EU, notifies of the termination that is to take effect in two years' time unless there is an extension. We have given the example in our written case of the European Parliamentary Elections Act 2002, and we have given extensive analysis of this in the written argument. It is in our written case, in particular, paragraph 17.3 a), which is MS 12394. But it is only an example.

    It is no answer for the appellant to say, as he does, that of course these rights lapse when we leave the club -- that is their answer -- but that begs the question, and the question is whether the appellant can lawfully use prerogative powers in such a way as to nullify these statutory provisions.

    But there are many other examples. Can I give the court one other example of our concern. It is volume 13 at tab 130, which is MS 4481, volume 13, tab 130, the Communications Act 2003, MS 4481. I am inviting the court's attention to section 4 of the Communications Act 2003 -- 13130 -- section 4 of the Communications Act is headed "Duties for the purpose of fulfilling EU obligations":

    "This section applies to the following functions of Ofcom ... (a) their functions under chapter 1 of part 2 ..."

    That is electronic communications --

  • This is section 4A, is it?

  • No, section 4. It is on MS page 4481.

  • Sorry, I beg your pardon. My fault.

  • "Duties for the purpose of fulfilling EU obligations", section 4(1):

    "This section applies to the following functions of Ofcom ..."

    First of all, their functions under chapter 1 of part 2 which concerns electronic communications, networks and services, their licensing function, and there is a lot more detail, none of which matters. My point is under section 4(2):

    "It shall be the duty of Ofcom in carrying out any of those functions to act in accordance with the six Community requirements which give effect among other things to the requirements of the framework directive. Then subsection 4, the second Community requirement is:

    "... a requirement to secure that Ofcom's activities contribute to the development of the European internal market."

    The third Community requirement is:

    "... a requirement to promote the interests of all persons who are citizens of the European Union, within the meaning of Article 20."

    My Lords, this simply does not make sense, it doesn't make any sense if the Secretary of State has a prerogative power to notify and to terminate all our -- all the UK's obligations under the EU treaties. All of that is simply frustrated or nullified and I could make the same point -- I am not going to -- but I could make the same point on dozens, perhaps hundreds of statutes covering vast areas of national life. Parliament has adopted sections in primary legislation that proceed on the basis that the United Kingdom is a member of the EU, and these provisions make no sense if we are not a member of the EU.

  • Are you saying what would be needed to undo these -- for example the Communications Act, supposing you are right and the service of the notice requires legislation, what kind of legislation? Are you addressing us on that or not?

  • No, I am not because my submission is a very simple one. My submission is that the Secretary of State cannot proceed along the path of notification without Parliament addressing the problem that will inevitably arise, and I am concerned only with the notification stage. I am coming on to deal with the argument that is going to be there is going to be a Great Repeal Bill and we don't need to worry about it, I will deal with that.

    My submission to your Lordships is that the statute book has so many provisions, and this is an example, that proceed on the assumption that this country is a member of the EU, that the Secretary of State cannot by prerogative powers take the step of notifying, leading to us withdrawing, without Parliament itself addressing this issue.

  • That is very clear. I understand that perfectly. But supposing you are right and Parliament does address the service of the notice, what is the effect of such an address by act of Parliament on the Communications Act 2003, or do you have the same problem with a legislative authorisation of the notice as you do with a prerogative authorisation?

  • No, because I would accept that if Parliament were to say next week that section 1 of the authorisation Act, the Secretary of State is authorised to notify pursuant to Article 50 of the TEU, then it would be exceptionally difficult to run an argument that there is any legal impediment in him doing so. He would have express statutory authorisation and Parliament no doubt would proceed on the basis, because it would be told to this effect in the parliamentary debates: all of these problems, Communications Act problems and others will be addressed before we actually leave the EU.

  • This is not an ambulatory statute, so technically the position is that if we were to, if notice is served and we consequently leave the EU this would remain in force, absurd as it is; no doubt in practice it would be changed, but the problem to which statutes like this give rise is a completely different problem to the one arising from the 1972 Act, isn't it; this is simply something which will look very strange but will continue to have effect until Parliament gets round to repealing it.

  • I suppose it might be impliedly repealed or frustrated if there was a statute authorising an Article 50 exit.

  • Frustration is the point. I entirely accept the point my Lord, Lord Sumption puts to me that it would look a bit strange. My point is that when the court is asking itself whether the Secretary of State really has a prerogative power to notify, it is an important dimension of the argument that that which he seeks to do will frustrate, will render insensible, a large number of statutory provisions.

    That is the submission, and that is not just my view, it is the view -- it is not just my submission, it is the view of the Secretary of State himself, because my friend Mr Eadie handed up to the court yesterday the statement that was made by the appellant, Mr David Davis, to Parliament on 10 October 2016. Does the court still have copies of that? It is the three-page document -- I can't remember, I think Mr Eadie asked the court to put it in the black folder.

  • The "next steps" document you are referring to.

  • "Next steps in leaving the European Union".

    If the court has that --

  • I am grateful. On the second page, it is the third paragraph of Mr Davis' comment. He says:

    "In all, there is more than 40 years of European Union law in UK law to consider and some of it simply will not work on exit."

    We respectfully agree and we therefore submit that it is impossible to understand as a matter of law how the Secretary of State can claim a prerogative power to notify. He must, in my submission, obtain a parliamentary authorisation to take steps which will leave large elements of the statute book to be rendered insensible.

  • I understand your argument, Lord Pannick; parliamentary authorisation would not extend even to a motion of both Houses after the issue had been fully debated.

  • Yes, that is the seventh point, which I am coming on to.

  • I am going to deal with that expressly, my Lord.

  • Can I come on to the fifth topic which is De Keyser and the other case law.

  • Have I been mispronouncing that case all my adult life?

  • Would your Ladyship like to tell me the correct --

  • I will call it De Keyser.

  • I may be wrong, I am often wrong.

  • You say De Keyser, I say De Keyser.

  • Down here we think it is De Keyser.

  • We can each stick to our own because the transcript will not give away what we have called it.

  • It is my fifth topic, whatever it is called, and whatever it is called, MS 228 CA 2, tab 10, what it was concerned with was Parliament impliedly removing a prerogative power. My submission is that that is not the only type of case where the courts will impose limits on the exercise of prerogative power. Here, we submit there simply is no prerogative power to act under a treaty so as to defeat, nullify, frustrate statutory rights. That is one additional principle.

    Another principle is where the exercise of prerogative powers would frustrate the provision made by Parliament; that is ex parte Fire Brigades Union, core authorities 2, tab 15, MS 444.

    My Lord, Lord Mance made the point in argument, I think it was yesterday, that in ex parte Fire Brigades Union, the majority recognised that it was not a De Keyser type case; see Lord Browne-Wilkinson, and I don't ask the court to go back to it, see Lord Browne-Wilkinson, page 553 F to G; see Lord Lloyd at 573 C to D; and Lord Nicholls, 578 F, his analysis also does not proceed on a De Keyser basis.

    So De Keyser in my submission is not, cannot be, an exclusive code as to the limits of prerogative powers.

    I also need to address Rees-Mogg, ex parte Rees-Mogg. Here I would ask the court to turn it up; it is in core authorities volume 2 at tab 14 and it is MS 424. The court will recall that the applicant there was seeking to challenge the ratification of the Maastricht agreement; in particular his concern was the protocol on social policy.

    Now, it is essential to, in my submission, understanding the case, to recognise that this protocol had no effect in domestic law and therefore did not remove, or indeed extend, domestic law rights, and that is stated by the divisional court at 568. It is MS 440. 568 of the report. Can I take the court to that, please. 568 A, MS 440:

    "Would the ratification of the protocol on social policy alter the content of domestic law.

    "The protocol itself makes clear that it was not intended to apply to the UK, nor is the UK party to the agreement which is annexed to the protocol. The protocol is not one of the treaties, which for this purpose includes protocols, included within the definition of the treaties in section 1(2) of the 1972 Act. It is specifically excluded by the 1993 Act. It follows that the protocol is not one of the treaties covered under section 2(1) of the 1972 Act by which alone Community treaties have force in domestic law. It does not become one of the treaties covered by section 2(1), merely because by the Union treaty, it is annexed to the EEC treaty, see section 1(3) of the Act of 1972."

    So what was being complained about in Rees-Mogg had no effect on domestic law rights.

  • I think Mr Eadie says that that paragraph is a second free-standing reason for the disposal of the application. Do you agree?

  • The case has to be understood in its context; I am not avoiding giving an answer to your Lordship's question, but can I come back to that after I have just shown your Lordship one other matter.

  • Because the other matter is that at the time when the case was brought, Parliament had already approved that which was to be done at the international level. So if your Lordship looks at page 562, which is MS page number 434, the court will find set out just under letter C the text of section 1 of the 1993 Act, section 1 of the European Communities (Amendment) Act 1993, which received royal assent, so it had already received royal assent on 20 July, and the case was brought on 26 July. It provides:

    "In section 1(2) of the 1972 Act, in the definition of the treaties and the Community treaties, after paragraph F, there shall be inserted the words ... and ... titles 2, 3 and 4 of the treaty on European Union, signed at Maastricht on 7 February 1992, together with the other provisions of the treaty so far as they relate to those titles and the protocols adopted at Maastricht on that date and annexed to the treaty establishing the European Community with the exception of the protocol on social policy ..."

    So there are two points by way of background, essential background, to understanding what it was the divisional court was deciding in the paragraph on which Mr Eadie relies. The first is that there is no effect on domestic law rights and duties by reason of the protocol on social policy, but secondly, Parliament had approved the treaty, including the protocols.

    Now, in that context, one goes to the passage to which Mr Eadie invites attention and what the divisional court are rejecting at 567 G to H is an argument, an ambitious argument, as the divisional court concluded --

  • There being ambitious counsel.

  • Very ambitious counsel in 1993. The divisional court rejected what it regarded as an unsustainable argument, that despite the fact that Parliament had given its approval, despite the fact it had no effect, the protocol, on domestic law rights, nevertheless, the 1972 Act curtailed generally what would otherwise be a prerogative power to amend or add to the EEC treaty. That is what Lord Justice Lloyd is rejecting and the argument is set out at 567 E to G, in particular just above F:

    "By enacting section 2(1), Parliament must therefore have intended to curtail the prerogative power to amend or add to the EEC treaty."

    That is what he is rejecting, his Lordship, and just above H:

    "We find ourselves unable to accept this far-reaching argument ... when Parliament wishes to fetter the Crown's treaty-making power in relation to Community law, it does so in express terms such as one finds in section 6 ..."

    Et cetera, et cetera. That is the point and my point is this has absolutely nothing whatsoever to do with the issue before this court on this occasion, which is whether or not the Secretary of State has a prerogative power to act on the international plane in a way which will frustrate, nullify domestic law rights and duties and the statutory scheme. That is not what was there being considered. That is my answer and that is why, although I accept -- in answer to my Lord, Lord Wilson's question, although I accept that 567 G to H is a separate answer given by the divisional court to the answer given at 568 B, it is only by understanding what is said at 568 A to B and what is said at 562 C to E, that one can understand what it was that the divisional court was rejecting at 567 H. That is my submission.

  • Can you just help me understand your argument in 1994 or whenever. The amendment, which you pointed to on page 562, excluded the protocol from the definition of the treaties and yet your argument was, on 567, accordingly the protocol will have effect not only on the international plane but also by virtue of section 2(1) on the 1972 Act on the domestic plane. How so?

  • That was the divisional court's reaction. That -- I don't want to complain but it may perhaps be an unfair question to ask me to defend an argument that the divisional court said simply didn't get off the ground.

  • I see, it is as simple as that.

  • I plead guilty, my Lord.

  • Not least because you now support the divisional court on this particular point.

  • Of course I am not inviting this court to say that anything said by the divisional court in the context of what it was deciding was wrong. So that is Rees-Mogg and that is my fifth topic.

    My sixth topic is the post 1972 legislation and the limitations placed on the use of prerogative powers. The court has heard that Mr Eadie relies on the statutory provisions post 1972 and they have imposed various limits on the power of the Crown to act on the international plane. Mr Eadie first referred to part 2 of the 2010 Act, CRAG, and your Lordships and your Ladyship have that at core authorities 1, tab 5, MS page 131. My Lord, Lord Mance I think it was, asked about the green papers and the white paper that preceded the 2010 CRAG legislation. I do invite the court, please, to look at the green paper; the green paper can be found in volume 15 at tab 166. 15, 166. And for the court's note, the white paper appears --

  • Do you have the MS number?

  • That is the green paper. The white paper is the next tab, tab 167 and that is MS page 5213 but could I ask the court, please, to focus on the green paper, 5189, volume 15, tab 166 and the particular passage to which I invite the court's attention is at MS page 5207. It is under the heading, "Ratifying treaties".

    MS 5207.

    "Ratifying treaties", paragraph 31:

    "Every year the UK becomes party to many international treaties. These result in binding obligations for the UK under international law across a wide range of domestic and foreign policy issues. It is right that Parliament should be able to scrutinise the treaty-making process.

    "32. The Government's ability to ratify treaties is currently constrained in two ways. Treaties that require changes to UK law need the enactment of prior legislation which, of course [of course] requires the full assent of Parliament [and they give examples] ... many other treaties [many other treaties] are covered by a convention known as the Ponsonby rule which is explained in box 3 ..."

    Box 3 is over the page, and the court is very familiar with the Ponsonby rule, that the instrument is laid before both Houses of Parliament as a command paper for 21 days. Back to page 5207, 33:

    "The Government believes that the procedure for allowing Parliament to scrutinise treaties should be formalised. The Government is of the view that Parliament may wish to hold a debate and vote on some treaties, and with a view to its doing so, will therefore consult on an appropriate means to put the Ponsonby rule on a statutory footing."

    That is what ends up as CRAG, part 2. It is a statutory enactment of what was the Ponsonby rule, obviously with variations, but that is the purpose and effect of CRAG part 2. It is nothing whatsoever to do with the other constitutional principle, which is recognised in paragraph 32 of that document, that if a treaty is going to require a change to UK law, of course it in any event requires the enactment of prior legislation which requires the full assent of Parliament.

    In my submission, therefore, CRAG part 2 is nothing to the point. It doesn't assist in answering the question in this case, which is a question concerned with whether there can be a prerogative power in order to amend the -- in order to frustrate legislation which has been enacted.

    So that is the 1972 Act -- that is, sorry, the 2010 Act.

    Mr Eadie also refers to the other post 1972 statutes. The court has been taken through them, the statutes that specifically relate to the EU from the first one in 1978, which addressed increases in the powers of the then European assembly, through to the 2011 Act, which is the culmination of this process, requiring not merely an Act of Parliament but in any context a referendum on changes.

    Now, my Lords, my Lady, leaving aside the post 1972 statutes, if we get to this point in the argument, then I have submitted that there was and is no prerogative power to take action on the international plane to nullify the statutory scheme created by the 1972 Act, particularly in relation to a statutory scheme which introduced a new source of domestic law. I have submitted that the 1972 Act, having regard to relevant principles of interpretation, that is the Public Law Project case, on Henry VIII clauses, legality, no implied repeal, that the Act is simply inconsistent with any prerogative power to set it aside.

    Now, if either of those submissions is correct, I say it would require the clearest of statements by Parliament in any later legislation, that it was intending, Parliament was intending, to create a prerogative power which did not otherwise exist. And I say that nothing in the later legislation comes close to establishing a clear parliamentary statement that a prerogative power that did not otherwise exist now exists.

    What Mr Eadie relies on is --

  • It would not be a prerogative power, would it, if it was created by statute?

  • It would be a statutory power.

  • It would be a statutory power.

  • But of course Mr Eadie does not put his case like that. He doesn't suggest that there is any statutory power to notify, he is very clear about this; he is not saying: look at the 2011 Act or any of the other post 1972 statutes, they confer a statutory power. His case is and has to be that the later legislation is, as he puts it, confirmatory of a prerogative power that previously existed.

  • Could it not be a revival of a prerogative power? I mean, you have assumed that the 1972 Act properly construed has the effect of abolishing the prerogative power, eliminating it, but that may require close study of what was actually being decided in the De Keyser and the Fire Brigades cases; on one view, perhaps they might simply be suppressing the prerogative power, and therefore it might be capable of being revived; or they might simply be saying that it was inappropriate to exercise it; do we have to look a little more closely at what they were in fact saying?

  • My submission at its height is that there is simply, and never has been, a prerogative power in the executive to use treaty-making functions in order to nullify that which Parliament has enacted, and that is the strong submission. If that is right, it is not a question of reviving a prerogative power; it has never existed. It would need to be created for the first time.

  • One should beware of metaphors, of course, but one of the things that has emerged in the course of submissions has been that the 1972 Act constituted a clamp on the power, and the 2015 Act was the means by which this clamp was dismantled. What do you say about that argument?

  • That the 2015 Act constituted a removal --

  • I have made my submissions on the 2015 Act. I don't accept that it has any effect, any legal effect on the contents of the 1972 Act or the constitutional principles that apply.

  • I think you take an anterior point, don't you, and that is it is not a question of a clamp. Once the 1972 Act invested the rights of the United Kingdom citizens -- with these rights, then that invoked a superior or at least a different principle, namely that those rights cannot be taken away.

  • They cannot be taken away because Parliament has enacted them, Parliament has provided them, it is basic to parliamentary sovereignty. However, I do accept that a consequence of parliamentary sovereignty is that Parliament can say something different.

  • And it is a question of interpretation. All I am saying is that given the significance of that which Parliament did in 1972, and given the other principles of interpretation to which I have referred, it does require the clearest of parliamentary statements post 1972 to vary that position.

  • You say they are the clearest possible words, but we have had to spend a lot of time looking at the statute to persuade ourselves or to be persuaded that the 1972 Act did remove, or put into abeyance, or abolish, or whatever, or did not give rise to, however one chooses to put it, a prerogative; but it seems to me that it could well be said that the statute had the effect of putting a clamp on the prerogative, particularly bearing in mind what Lord Bingham said about the importance of our constitution being seen as flexible in the Robinson case. And in those circumstances, you are not relying on an express term in the 1972 Act, in itself to clamp the prerogative. So we shouldn't be too surprised if we can conclude that the 2015 Act impliedly removes or relaxes the clamp.

  • Yes, but there is nothing in the language of the 2015 Act which can be focused upon, there is simply nothing there.

  • If one sees it in the sort of sense -- the way Lord Wilson puts it, of some sort of partnership between Parliament and the executive, between Parliament and the Government, then it seems to me there may be some force in the argument that says, when Parliament comes to face up to this issue, they say: well, let the British people vote; it is not decisive, of course, because the Government has to decide; but one could say it is Parliament ceding the ground so far as its role is concerned to the people, to a referendum; it has done that; and then it is over to the Government.

  • The former is, with respect, self-evident, that Parliament is saying that the people are entitled, should be given a voice. Where I would respectfully take issue is the second part of your Lordship's question to me. It doesn't follow in my submission that the people having spoken, they are advising the Government as opposed to Parliament.

  • One of the problems if you are right is that, in terms of the law, the referendum has no consequences at all and the whole Referendum Act has no consequences.

  • It has a very important consequence. Its consequence is a political consequence.

  • I know but I am saying as a matter of law -- in the concept of a flexible constitution, that could be said to be a little surprising.

  • In my submission, it is not surprising, given that that was the intention of Parliament; Parliament intended, in my submission, to establish a referendum which would advise those --

  • Advise who, precisely?

  • Advise both the Government and Parliament.

  • Maybe just advise the Government. Parliament was saying: over to you. "Advisory" is not in the statute. We find it in one statement, in a ministerial statement; there are lots of other statements one could look at. It is quite dangerous to look at advisory, but if we are into advisory, I am not sure where it takes us.

  • But one has an Act of Parliament that simply says: there shall be a referendum; it says nothing more, nothing more. What your Lordship is putting to me is that that is sufficient to overturn, if I am otherwise right, what is a fundamental constitutional principle that the Government, the executive, lacks power on the international plane, to set aside an act of Parliament, the 1972 Act, which is nowhere mentioned in the 2015 legislation. That is the first point: an absolutely fundamental constitutional principle is to be removed, as it were, as an implication; and I would respectfully submit that that would be a very surprising proposition.

  • You say as an implication, but that depends how one looks at it; if one looks at the 1972 Act as imposing a fetter by implication on the prerogative, because there is nothing expressly imposing any fetter, then it is not particularly surprising that the fetter is removed by implication.

  • But the fetter is a fundamental constitutional principle. What your Lordship is putting to me is that such a fundamental constitutional principle, that the executive cannot frustrate or nullify a statutory scheme, can be removed without the clearest of statements, and here we don't have any statement at all. It is not that my friends focus on a particular word, and they say, well, in the constitutional context, the language of the legislation ought to be interpreted in a certain way.

  • But as Lord Bingham said, one doesn't look at the language so much as the purpose.

  • With respect, that is not what Lord Bingham says; he says: within the scope of the language. That is what he says.

  • But the problem with your argument, and I see the force of what you say, is that in law, and I repeat this, as a matter of law, the referendum has no effect. I understand your point that it has a political one, but it could be said to be a bit surprising that in a flexible constitution, an act such as the Referendum Act and an event such as the referendum, has no effect as a matter of law.

  • But that, with respect, begs the question: what is it that the referendum was designed to achieve. It is open to Parliament to institute a referendum which does have a binding legal effect, and there are many, many examples of where Parliament has done so. Parliament has deliberately chosen a model which does not involve any binding legal effect, and it is a perfectly coherent statutory scheme for Parliament to say that: it is very important that the people be given a voice; this is a highly contentious political issue, and before any steps are taken as to the future of the UK's membership of the EU, the voice of the people should be heard. That is not an event of no significance, but it begs the question: what is to be the consequence?

  • I quite accept, just as much as you can say, quite rightly, that it doesn't tell us that the effect is intended to be binding; so anyone arguing against you can say it does not say it is not intended to be binding; and one comes back to Lord Mance's point, that one has to look at the act, your point in terms of its language; but one also has to look at its consequence. And it may not be binding on the Government, nobody suggests that the Government is obliged to serve an Article 50 notice, and therefore it is not binding. In the other acts you refer to, it is not merely binding, it is binding on the Government. This Act may be enough for the Government to say: Parliament has ceded the issue, as far as Parliament is concerned, to the people; we can now go ahead.

  • So the argument being put to me is that the 2015 Act does not have any binding force as against the Government. It doesn't commit the Government. And no one could, I think, seriously suggest it does commit the Government to notify -- the Government could say, we have decided, actually, we don't ...

    But nevertheless your Lordship is putting to me it is intended to have a different legal effect, which is to remove what is otherwise the absence of prerogative power on the Government, should it decide to notify, it is now perfectly entitled to do so, even though it would otherwise have no prerogative power to do so.

  • Yes, it basically revives the prerogative power, the point that was being put to you, of course there is nothing to stop Parliament, before the Article 50 notice is served, calling the matter in and reconsidering it; that is a different point.

  • I am coming on, if I may, to the question of parliamentary involvement.

  • You could say this illustrates the dangers of metaphors, because if you regard the 1972 Act as suppressing or placing a fetter on or a clamp on the prerogative, then that begs the question how is that fetter or clamp removed. As I have understood your argument, you submit it is not a question of a fetter, it is a question of the 1972 Act creating a new context; and the new context is that, given that powers, rights, have been given to the British citizens by this means, a new constitutional principle is in play, by reason of the different contexts.

    And therefore when one comes to examine the 2015 Act for its efficacy in putting at nought that constitutional principle, you are not addressing the question: are you removing a clamp or dismantling a fetter; you are asking yourself the question: is it sufficient to displace the fundamental constitutional principle which you say obtains?

  • I respectfully agree. I am relying -- the 1972 Act arises in the context of a fundamental constitutional principle which applies generally. It is a fundamental constitutional principle that that which Parliament has created, ministers cannot set aside. Then one has the 1972 Act which adds greater force to the submission for all the reasons that I have sought to give, that it is not just an ordinary Act of Parliament, it is an act of constitutional importance, which contains section 2(4), which makes it even less likely that ministers would have a power to exercise the prerogative.

    But I respectfully agree, there is no clamp, it is the application of fundamental constitutional principles of the United Kingdom. I do submit that if those fundamental principles are to be removed by Parliament itself, it is necessary for there to be clarity. Whatever else one might say about the 2015 Act, I respectfully submit that it cannot be said that the 2015 Act clearly removes the inability of the executive to act so as to frustrate the statutory rights. There is no clarity at all. What one has is an act of Parliament in very simple terms, there shall be a referendum, and that is all it says.

  • So in 2015 Parliament says we must have a referendum. Now there has been a referendum, and the significance of the outcome is enormous, but can one discern in the Referendum Act, Parliament going on to say: and by the way the political significance will be for you, the executive, to weigh; or rather, as you say, isn't Parliament more likely to have said, having called for it, and when it has been done, we will assess the significance of it.

  • That is precisely my submission, and I do say that, if the case against me is that the 2015 Act has altered the position, has altered what the position otherwise would be, then it is incumbent on those who make that submission to show that Parliament has clearly altered what is otherwise the basic constitutional position, and there is no clarity whatsoever in support of the appellant's position.

    One has an act in the most general terms that simply does not address the division of power between executive and Parliament. That is not the subject of the act, that has nothing whatsoever to do with that topic, and I therefore respectfully submit that one cannot discern from this Act of Parliament any alteration of constitutional fundamentals, far less in the context of the 1972 Act.

  • It might be argued that it is a different type of act from most acts that Parliament passes. Its whole point is to have political effects. It is not altering anybody's rights, for example, it is not the sort of legislation that Parliament passes day in, day out. It is an act which is designed to result in an event which will have enormous political significance.

    The steps that then require to be taken in response to that are inevitably going to be steps taken by Government. It might decide to introduce a bill into Parliament, it might decide not to. Parliament can then respond. If there is a bill introduced, it can decide whether it is going to pass it or not; if there is no bill introduced, Parliament has the means of making the Government accountable to it for that failure.

    So looking at it that way, it is an essentially political measure designed to have consequences at the political level between the political actors. If you look at it in that way, really, why is the court -- what role does the court have to play? There is not a legal issue really that arises here, other than our ensuring that the political actors are operating their roles in a lawful manner.

  • My answer to your Lordship is that there is a role for the court to play. The role for the court is to identify whether or not the Secretary of State enjoys a power to act on the international plane, using his treaty making, and departing from prerogative, in such a way as it will nullify statutory rights. For all the points that your Lordship makes, the essence remains, and what remains is that, before the 2015 Act, there is a body of statutory rights and statutory principles, the 1972 Act, and after the 2015 Act, all of those provisions remain. They are simply untouched by the 2015 Act.

    Also untouched by the 2015 Act is the legal division of responsibility between the executive and Parliament. The Act says nothing about that, and nobody has produced any material whatsoever to suggest that the 2015 Act was intended to touch upon that issue. There is no material before the court in which ministers have said: and the division of responsibility between ministers and Parliament is going to be affected by all of this; none whatsoever.

    Therefore I do not accept that the political significance of the 2015 Act, which I do not dispute, in any way touches upon the issue before the court, or touches upon the constitutional question. It was open to Parliament, open to Parliament, if it wished to do so, to say whatever it liked on this topic, and it said absolutely nothing.

    For the court to infer matters that are simply not addressed in the Act, when they touch upon constitutional fundamentals, in my submission, would be fundamentally wrong; it would be wrong for the court to infer, on a matter of this importance and sensitivity, that is the relationship between Parliament and the executive, a radical change of position by reason of an act which says nothing on the subject.

  • The way I have put it to you, obviously the court's role is to interpret the 2015 Act, but if it interprets it the way that I have put to you for your comments, the result is to allow for a flexible response by Government, depending on the outcome of the referendum, obviously, which is subject to parliamentary control in the normal way.

    If we construe it in the way that you are arguing, inviting us to, the consequence is that the court then, as I understand it, has to effectively compel a Government minister to introduce a bill into Parliament, which is constitutionally a novelty, to say the least, and if, for example, Parliament were to pass a resolution in both Houses approving of notification under Article 50, the court would say to Parliament: that is not good enough, we, the court, are telling you that will not do.

  • Can I come on to that, my Lord, that is the next point. Let me just deal if I may, try to deal with the point your Lordship has made.

    The court is not being asked in my submission to interpret the 2015 Act. There is no language in the 2015 Act which comes close to supporting the contention that is being made by the appellant. There is nothing. The appellant does not focus on any language in the 2015 Act, and in my submission, with great respect, it is a constitutional solecism to say that the court can somehow divine an intention from the 2015 Act, without focusing on the language that the legislation uses.

    There are many statements to that effect, that it is simply not the court's role, even in a constitutional context; it is Lord Hoffmann's famous statement, approving the judgment of Associate Justice Kentridge(?) in the Zuma(?) case, I can't remember the case where Lord Hoffmann said it but I will track it down, the court has to look at the language of the governing instrument; and this is the 2015 Act; there is nothing in it that the appellant has drawn attention to which begins to support a contention that it touches upon the issues with which the court is concerned.

    Indeed, I repeat, it is not the appellant's argument that power to notify is to be derived from the 2015 Act. That is not their case. It is somehow by means of legal osmosis that the argument is being constructed. There simply isn't anything there; there is nothing there upon which I say this argument can be framed. In my submission, it is not surprising that Parliament has not expressly addressed the question of whether ministers can use prerogative power in order to nullify a statutory provision. The principle is so basic that one would not expect Parliament expressly to address the question.

    So I say the 2015 Act is an act of political significance; it is entirely neutral on the issue before the court, as to whether or not the minister has power to notify.

  • On the question of whether all acts must have legal significance, you might -- I am not sure what your answer is in relation to Lord Keen, the submission relating to the Sewel convention, but the Sewel convention as enacted in section 28(8) of the Scotland Act might be said to be an example of a piece of legislation which doesn't have any legal significance. It simply enacts the convention and -- on one view I appreciate it is an issue in this case, and that people are saying it does have legal significance.

  • I can see the force of that submission. I am entirely neutral, of course, and the court will decide, but it is not unknown for Parliament to pass legislation that has an exhortatory intention. It doesn't necessarily have a concrete legal consequence, and I repeat, it is not difficult to understand why Parliament was enacting the 2015 Act. The court is not ignorant, of course, of the political realities. The political reality is a highly controversial political issue; it is considered appropriate, and understandably so, that there should be a vote, so that all those political actors understand what are the views of the electorate; but that tells you in my submission absolutely nothing as to what is to follow as a consequence of the vote.

  • But the Act did have an effect. The Act had an effect. It provided for the referendum. The franchise in the referendum, which is different from the parliamentary franchise, made it lawful for the whole of the referendum to do everything. The Act undoubtedly had an effect.

  • The question is whether the result has a legal effect.

  • Yes, my Lord, Lord Sumption.

  • I was going to ask you exactly the same question.

  • I apologise, I am labouring the point but that is the point, that Parliament has spoken. What Parliament required has occurred. This is not a nugatory act of Parliament, and some of your Lordships are putting to me questions that are seeking to divine from the Act a purpose and intention and effect that is simply not there, in my submission.

  • I think the case you had in mind where Lord Hoffmann approved Zuma is Mattadene(?).

  • Your Lordship is right, 1999 appeal cases. Your Lordship is familiar with it.

  • I have found it. I cannot pretend to be familiar with it.

  • Lord Hoffmann says, quoting Associate Justice Kentridge, that even in a constitutional context, even in a constitutional context, it is absolutely vital that what the court does is it looks at the language of the relevant instrument, here the 2015 Act.

    What the court cannot do, because otherwise -- I think the term used is divination, what the court cannot do is somehow to infer from the general context a purpose and intention and effect that has no support whatsoever in the language. That is creation. That would be, in my submission, objectionable to traditional law-making.

  • If the language used by the lawyers is ignored in favour of a general resort to "values", the result is not interpretation, but divination.

  • Precisely so, and what Lord Bingham said in Robinson is entirely consistent with that, because the statement by Lord Bingham in Robinson is within the scope of the language that is used by the instrument. That is my submission.

  • I am trying to get a word in edgeways here, Lord Pannick. We have jumped from 1972 to 2015. Are you going to come back to the --

  • My Lord, very, very quickly --

  • I would like at some point to get clear your submission as to what happened in 2008, because that is when Article 50 is created, and undoubtedly Article 50 created a new power operating at the international level, which one could assume would be something operated by the prerogative, so a new power which the UK Government has operating in international law; I think we need to ask ourselves what the effect of the 2008 Act was, if anything, on that.

  • I say no effect for these reasons. First of all, I accept, and it is the Government's case, that the United Kingdom had power to withdraw from the treaties prior to the changes made by Lisbon. It is not suggested by the Government this was a new power; it is a new means, it formalises the process. That is the first point.

    The second point is that Article 50 does not say anything about the way in which domestically the state should act. It refers to the constitutional requirements of the state in question.

    Thirdly, as Mr Eadie accepted, Article 50 does not have effect as part of section 2(1) of the 1972 Act. Therefore, I submit that it is simply not possible to suggest that what happened in 2008 affects the question of the division of responsibility between the Government and Parliament.

  • Except that Parliament in the 2008 Act constrains various exercises of prerogative specifically set out in that Act, doesn't do it to Article 50, and then in the 2011 Act, we get this acknowledgment that Article 50 is within the scope, as it were, but simply a reference to Article 50(3).

  • What Parliament has done from 1978 onwards is to impose an increasingly rigorous form, set of controls, and Mr Eadie's argument is that the power -- what he says is the prerogative power to notify is not the subject of any specific restraint, and my answer to that is one would not expect it to be, because it is so fundamental an aspect of constitutional law that ministers cannot use prerogative powers in order to remove that which Parliament has created.

    But of course Parliament has not set out expressly that constitutional principle. It is a fundamental common law principle. The later acts are concerned, essentially, to constrain ministers from taking action at international level to expand the scope of EU law. That is the main focus of all the later legislation.

    The fact that Parliament has from time to time imposed such constraints cannot establish that Parliament intended to remove a basic constitutional limit. Indeed, if one looks at the authorities, the authorities show that one should be very careful indeed before you use later legislation in order to amend or affect earlier -- the effect of earlier legislation.

    My Lord, Lord Mance asked about the authorities and my Lord helpfully referred to two authorities. One in your Lordships' and your Ladyship's House most recently is the JB (Jamaica) case, Lord Toulson's judgment. It is in volume 22, tab 276, JB (Jamaica), MS 7778 and it is at paragraph 24 and I invite the court to look at that. I don't have time to take your Lordships or your Ladyship to it.

  • Sorry, it is as much my fault as anyone else's; we have been rather taking up your time.

  • I don't complain about that, my Lord; I am happy to seek to try to answer the points the court wants to raise.

    My seventh and final topic is the role of Parliament, and the submission that is made by the appellant is there have been debates in Parliament. There have been Select Committee reports, there will be more such debates, and the appellant says it is a matter for Parliament to decide the nature and the extent of its involvement. Of course we agree, subject to an important qualification.

    We say it necessarily follows from our submissions, if they are correct, that only an act of Parliament could lawfully confer power on the appellant to notify under Article 50(2). Why is that? Well, because notification would nullify statutory rights and indeed a statutory scheme. The law of the land is not altered by a motion in Parliament; this is a basic constitutional principle. The court knows a motion may be approved in the House of Commons today. I want to be very clear on this. Our submission is that a motion in Parliament does not affect, cannot affect, the legal issues in this case. This issue arose in the Laker case. Can I take your Lordships back to the Laker case; it is core authorities, volume 2, and it is tab number 12.

  • MS 307. It is at page 367 of the MS, MS 367. This is Lord Denning, and what Lord Denning explains between E and F is that the action of the Government had been the subject of approval in both Houses of Parliament. E to F. At G, Lord Denning says:

    "... mark you, this approval even by both Houses was not the equivalent of an act of Parliament. It could not override the law of the land ... see Hoffmann-La Roche."

    That is the point and I can take the court, if the court wants to see the passages in Hoffmann-La Roche, I won't do so because of time, but it is volume 21, tab 257, MS 7183. So a motion in Parliament simply cannot rectify what is otherwise the legal deficiency in the appellant's case.

    If, as we submit, the appellant cannot act on the international plane by the exercise of the prerogative because it will nullify statutory rights, then an act of Parliament is necessary to change the law of the land.

    One other authority that your Lordships and your Ladyship may wish to be reminded of, it is the ex parte Federation of Self-Employed case. Volume 8 of the authorities and it is tab 68.

  • National Federation of Self-Employed, volume 8, tab 68, MS 2782. The relevant passage is to be found at MS 2809 in the speech of Lord Diplock, between F and G if your Lordships and your Ladyship have that, at tab 68, Lord Diplock says:

    "It is not in my view a sufficient answer to say that judicial review of the actions of officers or departments of central Government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge. They are responsible to a court of justice for the lawfulness of what they do and of that the court is the only judge."

    That is the point. It is no answer for the Attorney General to say in his submissions, as he did on Monday, and I quote:

    "Parliament can stand up for itself."

    With great respect, that is a bad legal argument. The same could have been said in Laker, the same could have been said in ex parte Fire Brigades Union. It is the role of the court and my Lord, Lord Reed asks me about the role of the court, it is the role of the court to address whether there is legal power to act in the relevant respect, and the ability of Parliament to control that which the minister is proposing to do is, with great respect, nothing to the point.

    This is as fundamental as any other principle in this case and I invite the court not to accept any suggestion that the legal limits -- I emphasise legal limits -- on ministers' powers are to be left to or influenced by political control, or parliamentary control, short of an act of Parliament.

    The appellant then says, well, the procedures under the 2010 Act, the CRAG act, are very likely to apply to a withdrawal agreement. That is not good enough. There may not be a withdrawal agreement and the UK would still leave the EU under Article 50(3). We don't know. If Parliament were to refuse to give approval to a withdrawal agreement, Article 50(3) would still apply. We would still leave. Parliament's approval is not a necessary condition for us to leave.

    For the same reasons, the so-called Great Repeal Bill does not assist the appellant. There is no such bill at present. The court cannot proceed, in my submission, on any assumption as to what Parliament would or might do with a Great Repeal Bill. My Lord, Lord Sumption put to Mr Eadie the court cannot assume that the Great Repeal Bill will repeal the 1972 Act. Mr Eadie agreed, and, with respect, so do we. It may be enacted, it may be rejected. Come what may, the act of notification commits the United Kingdom to leaving the EU with the consequence for statutory rights that we have drawn attention to.

    One other very brief point. The court, I know, will have been much assisted by the various analyses by academic lawyers, of real distinction, on both sides of the argument on this appeal. Each side has extracted from the academic analysis the points which support our respective arguments and the court will decide who has the better of the arguments.

    My Lords, my Lady, the submission for Ms Miller is that the volume of materials before the court, indeed the volume of lawyers before the court, and the eloquence of my friends the Attorney General and Mr Eadie and the Advocate General for Scotland should not be allowed to obscure the basic principles of constitutional law which I say the appellant's argument would violate.

    Those are the submissions I want to make, unless there are other matters on which I could seek to assist the court.

  • Thank you, Lord Pannick. Thank you.

    Mr Chambers.