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

  • My Lords and my Lady, my clients are a group of ordinary British citizens and one Gibraltarian citizen who are all people who will be affected in a very significant way, in very significant aspects of their lives, by a decision to leave the EU and the profound changes this decision will make to the law of the United Kingdom and to their rights as European citizens. They have been crowd-funded by many thousands of relatively small donations from private individuals.

    The issues in this case concern a long-standing constitutional principle, or long-standing constitutional principles. To some the legal arguments in the case may sound dry and antiquarian, and it is true that some of the principles that I rely upon have a long history, but that is not to diminish their importance. As Mr Eadie said, and I agree with him, the fact that a principle is well established does not make it an irrelevant anachronism today. Such principles can have a real and continuing value in contributing to the effective allocation of powers between the limbs of the state and in ensuring that they do not illegitimately intrude on to one another's territory.

    On that subject, may I say one word on the role of the judges which has been the subject of intense interest in this case. The applications for judicial review before this court are not, of course, an attempt to persuade judges to usurp the power of any other arm of the state in an illegitimate way. They are certainly not, as Mr Eadie suggested in his closing observations on Tuesday morning, an attempt to persuade this court to undertake an act of judicial legislation.

    The court is not being asked to decide whether in the light of the result of the referendum, the United Kingdom should leave or should not leave the European Union. Nor is it being asked to compel either the Government or Parliament to do anything. All the court is being asked to do is to consider whether as a matter of law, an intended act by the appellant to notify the European Union of a decision to leave on behalf of the United Kingdom would be a lawful act in the absence of express statutory authority. The relief which the respondents seek is for the court to uphold the declaration that the divisional court gave that he does not have such power and so it would be unlawful.

    This is an entirely orthodox application for judicial review in that respect, even if it is not and I can't submit that it is, an entirely ordinary one.

    So if I could outline our approach. Mr Eadie invites this court to find that the court can trigger Article 50 in exercise of the royal prerogative, even though this will alter domestic law, because it has what he described on Monday, and it is in the transcript at page 75, as an "untrammelled" prerogative power to do it.

    We disagree with that. We reject the false assumption that the foreign relations prerogative extends to permitting the Government to dispense with domestic law and in his written case, paragraph 64, that is MS 12356, the appellant invites you to start your analysis at what we say is the wrong point by asking you simply to assume that there is a prerogative power to change the law, and then, basing yourselves on that assumption, to ask whether this presumed prerogative has been abrogated.

    This is an artificial starting point. It is the wrong starting point, and the reason it is the wrong starting point is because it is almost halfway down the analytical track. But it is perhaps a convenient starting point for the appellant, because it bypasses what we say is the biggest hurdle which he faces in this appeal.

    As Lord Sumption put it in questions to Mr Eadie on Monday and as Mr Gordon has submitted and as we put in paragraph 7 of our printed case, MS 12482, before you ever get to any question of abrogation, you have to ask a prior question. What are the limits, if any, of the prerogative power to make and unmake treaties? Does the treaty prerogative extend to changing the law on the national plane? Because if it doesn't, then no question of abrogation ever arises. We invite the court to approach this case from what we say is the true starting point by considering two questions.

    The first question to address is as to the extent of the treaty prerogative and whether it extends to allowing the Government to effectively dispense with domestic law at all. We say it doesn't and that is my first proposition.

    We say it is a fundamental constitutional maxim, not a mere generality, that the King, or, in this case, the appellant exercising the Crown's powers, may not, using the language of The Case of Proclamations, by his proclamation or any other way change the law or remove rights.

    We say that the Bill of Rights and indeed the Claim of Right in Scotland and the Acts of Union put it beyond doubt that only the United Kingdom Parliament can change the law.

    The second question to consider is whether triggering Article 50 would in fact change domestic law and remove European Union law rights which are recognised by it, contrary to the prohibition on dispensing with law, and we say that it would. That is my second proposition.

    We say that European Union law is domestic law, and that rights conferred under it are domestic law rights, and that they are not contingent on an exercise of prerogative power. I will submit that Professor Finnis upon whose views the Government relies so heavily is wrong to say that section 2(1) of the European Communities Act is no more than a vessel, so that the existence of any domestic law rights is contingent on the exercise of a Government minister's entirely untrammelled general power to remove the very source of them.

    That will be my second strand of submissions.

    Finally, I will address you briefly on two short matters that have arisen during the course of oral argument.

    Turning then to my first proposition, can I establish at once that we do not, of course, deny that subject now to the provisions of CRAG, the appellant has a power to enter, and -- not subject to the provisions of CRAG, to withdraw from international obligations on behalf of the United Kingdom. The court is not faced with a dispute about the existence of a treaty-making prerogative, nor indeed a dispute as to its exercise. This is not a misuse case. The only dispute as far as we see it is as to the extent of the prerogative which exists. The appellant puts the extent of the foreign affairs prerogative in issue, and Mr Eadie said on Monday that the prerogative power in the field of making treaties, ratification of treaties and withdrawal from treaties is and always has been, he said, always has been, a general power untrammelled by any implication that it cannot be used to change domestic law.

    We say there is no prerogative power to change or dispense with the law as it stands outside the prerogative, whether that pre-existing law is contained in the common law or in acts of Parliament. So in that sense it goes beyond the issue of parliamentary sovereignty which Mr Chambers raised. My authority for that, I don't ask you to turn it up, is Lord Hoffmann in Bancoult (No 2), which is core authorities volume 4, tab 54, MS 2225, paragraph 44.

    So faced with that dispute between the appellant and the respondents, the correct approach for the court to take, we say, is the one which was identified by Lord Bingham in Bancoult (No 2), and may I ask you to turn that up please --

  • You have set it out in your case at paragraph 8, haven't you.

  • Yes. The passage I was planning to take you to is only slightly longer; it starts at 2230 in the electronic manuscript. Paragraph 69, six lines down:

    "It is for the courts to enquire into whether a particular prerogative power exists or not, and if it does exist, into its extent. Over the centuries the scope of the royal prerogative has been steadily eroded ... as an exercise of legislative power by the executive without the authority of Parliament, the royal prerogative to legislate by order in council is indeed an anachronistic survival. When the existence or effect of the royal prerogative is in question, the courts must conduct a historical enquiry to ascertain whether there is any precedent ... the exercise of the power in the given circumstances. If it is law it will be found in our books."

    Then after the citation from Entick v Carrington, Lord Bingham refers to De Keyser and to Burmah Oil and he cites there the passage in Lord Reid's speech which Mr Eadie took you to. He explained why Lord Reid was talking about the prerogative as a relic of a past age:

    "I would think the proper approach is a historical one ... how was it used in former times and how has it been used in modern times."

    So Mr Eadie and I agree that the correct approach is a historical approach, but I submit that it is striking that despite positively commending that approach to you, Mr Eadie did not undertake any such enquiry, but put his claim for a wide untrammelled prerogative to change the law at the basis of general assertion.

    In paragraphs 13 to 23 of our written case which is in the core volume at tab 12, MS 12484 and following, we have undertaken precisely that enquiry. You will have read it, of course, I will not go through it word for word, but in a moment I will seek to draw your attention to some particularly significant parts of it, but before I do that, may I make an overarching observation.

    The case before you shows that the appellant confuses two different concepts, which we say should be kept distinct, and it is that confusion which leads to the error in his case. One of the concepts that the appellant submits or advances is uncontroversial, but the second is controversial and we say it is wrong.

    The first proposition is that the concept of a prerogative power to affect rights exists. The fact of such prerogative power is not controversial; it is a matter of common law. The appellant submits, and we accept, that there are some residual prerogative powers and that the lawful exercise of some of those powers within their proper boundaries may affect the way in which people enjoy rights.

    So, for example, the prerogative to set conditions for Crown servants in the GCHQ case affects what conditions of work those servants have. The prerogative to requisition property where it is necessary to wage a war means that your property rights are attenuated in time of war. That is what cases like De Keysers were examining. Given the scope, and in De Keysers it was an assumed scope of the war prerogative -- any particular prerogative, in that case, the war prerogative -- has that prerogative been abrogated by statute? That is uncontroversial.

    The second concept, which we say that the appellant confuses with the first, is the idea of a prerogative power so wide that it changes the law, or suspends or dispenses with the operation of the law, or alters the sources of it. The confusion in the appellant's case, we say, is to equate the existence of a prerogative power which can have an effect on rights when operated within its scope to the existence of a prerogative power to change or dispense with law outside its scope. The confusion results in a submission which we submit is contrary to the most basic principles of our constitution.

    Of course there can be actions in use of the prerogative on the international plane which vary the facts to which the law applies. Post Office v Estuary Radio is one example; the prerogative is used to change the territorial waters, the scope of the statute or the effect of the statute changes. The Joyce case is another, you declare war, somebody making a radio broadcast becomes the Queen's enemy and comes within the ambit of the Treason Act.

    But we say that is materially different to changing the law which applies to particular facts, let alone the sources of law. For example if the war prerogative includes a power to requisition, as was assumed in De Keyser, that is not the same as empowering the Government in time of war(?) to abolish or alter common law or statutory property rights altogether.

    So we dispute the appellant's submission that the prerogative can be used to dispense law, on the basis of the historical enquiry which we have undertaken and set out in our written case. I will take this by reference to the written case, and please could you have it open for this part of my submissions; the relevant passage is on MS 12484 in the second core volume.

  • From paragraph 13 we have looked at the general constitutional position concerning the use of the historical prerogative to dispense with law, and separately from paragraph 17, whether it can be said that the treaty prerogative is in some way different or wider.

    So the first part of the historical case from paragraph 13 sets out the authorities which show that the prerogative, any prerogative, cannot be used to dispense with or suspend the law. May I please ask you to cross out the words "the foreign relations" above paragraph 13 in that heading, which is an overenthusiastic autocorrect function, I am afraid.

  • Subheading B above paragraph 13, "the foreign relations" should be crossed out. These are the cases which are not about the foreign relations prerogative, and the next heading is about the ones that are about the foreign relations prerogative.

  • I will not, can I reassure you at once, take you to all of these, but may I start by showing you the first one, which is The Case of Proclamations, which is in the core authorities volume 2, tab 9, MS 225. This of course is a case that precedes the Bill of Rights and concerned the extent of a King's power by proclamation to prohibit new buildings around London. On page 226, about halfway down the page, you see the holding, which is 226 in the electronic manuscript:

    "The King, by his proclamation or other ways, cannot change any part of the common law or statute law or the customs of the realm."

    Then at the bottom of the page, they look at some cases. Four lines from the bottom, Lord Coke observes that:

    "We do find diverse precedents of proclamations which are utterly against law and reason, and for that void, and which therefore should not be brought into precedent."

    The first example is an interesting one in this context. An act was made by which foreigners were licensed to merchandise within London, but Henry IV by proclamation prohibited the execution of it and said it should be suspended until the next Parliament, which was against the law.

    That is the principle of the thing. If by statute it is said people can trade in this country, the royal power cannot be used to suspend that without further parliamentary authority.

    That was then put in statutory form in a sense in the Bill of Rights which you have seen, and the Claim of Right, which established that the Crown has no power to dispense with or suspend laws.

    So the next step in my historical enquiry is Article 18 of the Acts of Union. I don't think we need to turn it up, it is volume 12, 107. Article 18 is at MS 4161, it is very familiar. But that really puts the point positively, so in the previous authorities it has been said, the Crown cannot dispense; what the Acts of Union say is that only body with power to change the law, at least as far as Scotland is concerned, is the UK Parliament. And in relation to private law we have the question of evident utility, but even in relation to public law, the only body that can change that law for Scotland is the United Kingdom Parliament.

    So then we come forward in time to the 20th century, and you'll see in our written case, I will not take you to it, the case of London County Council v The King, where London County Council intended to give a licence which indicated that the Sunday Observance Act was not going to be enforced. That was quashed because Lord Justice Scrutton held in fairly trenchant terms that the London County Council was in no better position than James II in that respect, and we submit nor plainly is the appellant.

    It is not in our written case, I have mentioned it, that Lord Hoffmann in Bancoult (No 2), paragraph 44, MS 2225, said that since the 17th century, the prerogative had not empowered the Crown to change English common law or statute law.

    Coming forward again in time to Nicklinson, again, I will not turn it up because I know you will be very familiar with it, it is volume 8, 73, 2965, that was the case where it was proposed that in order to give effect to European convention rights, a criminal law, the Suicide Act, would be kept on the statute book but ought to be disapplied by an executive act, a policy setting out the circumstances in which it would not be applied.

    That proposition was rejected by my Lord, Lord Sumption on the basis that it would be contrary to the Bill of Rights. He also drew attention to Priti(?), which was a case where an individual dispensation from the law was sought from someone whose husband wanted an assurance that he would be immune from prosecution if he assisted her in suicide. That was said it couldn't be done, because it would be a dispensation with the law on a proleptic basis. That is what we submit a notification under Article 50 would be.

    We have also set out some New Zealand and Australian authorities. Fitzgerald was the case we cited to the divisional court. That was the case where it was announced that a statutory scheme would no longer be applied, ending the intended passage of legislation to confirm the policy, and that was held to be an unlawful suspension of the law.

  • Fairly similar to the Fire Brigades Union.

  • It is, that is what I was going to say, my Lord. What is said in that case, that it doesn't matter that we think Parliament intends to change this law later, that is constitutionally irrelevant. What Lord Browne-Wilkinson said in the Fire Brigades Union case, at MS 483, is that it is not for the executive to say that provisions of law, inconsistent with the prerogative(?) act would be repealed when a suitable legislative opportunity arises. It is for Parliament and not the executive to repeal or not repeal legislation. It is their choice.

    Then we cite the Hayden case, the last line of that citation, whatever the vestige of the dispensing power which remained at the time of the Bill of Rights, it is no more.

    The second part of our historical enquiry from paragraph 17 on MS 12486 addresses any distinction that the appellant may seek to draw between the ordinary position in relation to prerogative powers and the foreign relations prerogative, because it may be argued as with the royal prerogative, the royal prerogative can alter the enjoyment of property or may be able to alter the enjoyment of property in certain circumstances; can the foreign relations prerogative do that as an aspect of its content?

    But again, we say that the Secretary of State's submission that his power, prerogative power to enter or to withdraw from international legal obligations is entirely untrammelled, simply cannot withstand the historical enquiry which Mr Eadie and I agree is the correct approach to this.

    There is a strong line of authority to support the orthodox view that the executive may not, by exercise of its foreign policy powers, vary domestic law or to remove rights.

    Again I take that from my written case, it has not been challenged, I will not take you to the underlying cases one by one unless you want me to --

  • You have taken us to the case in -- the Henry IV case cited in Coke's report of proclamations.

  • Yes, I have taken you to The Case of Proclamations. I am not going to take you to them unless you want me to, I can take you to the underpinning --

  • Basically you say these cases, as it were, speak for themselves. Any particular one you want to take us to?

  • Yes, I will just draw your attention to the case about the end of the Seven Years' War, and Chalmers' "Opinions of Eminent Lawyers". I will not take you to the point case, but the case arose as a result of the treaty of Paris at the end of the Seven Years' War and although -- before the Seven Years' War, Newfoundland had been a British territory but French fishermen had had historic fishing rights there, from the treaty of Utrecht. Those were preserved at the end of the Seven Years' War by the treaty of Paris. But almost immediately after that, the Crown wanted to amend the treaty of Paris.

    So it asked the law officers if they had -- if it had power to do that, whether the Crown could legally enter into and had any power to endorse such regulation. The law officers said that the Crown could not do that. The reason why not was because it was considered that the articles of the project were not consistent with the 10th and 11th acts of William III, which are not in the bundle but you can have them if you want them. That was the policy of that Act and it was inconsistent with the purposes of the legislation.

    The reason I draw your legislation to that one is because it was not about only the rights of British subjects, or indeed necessarily on soil that was protected by Britain. It was about using a treaty power to amend that which was seen to be the purpose of a statute, and it was said that that couldn't be done.

    Then we have George III adopting an act of Parliament to enable him to enter treaties to end the wars with the American colonies, because he was not sure, or because I invite you to find that it was assumed that he would not have power to do that, cutting across domestic law rights in the absence of an act of Parliament.

    Then we have the Phillimore principle that my Lord, Lord Pannick took you in the Parlement Belge case. It is worth observing that that -- Sir Robert Phillimore's judgment's in case was in fact overturned on appeal, but the reason it was overturned on appeal was because the Court of Appeal considered that the prerogative did extend to deciding that a ship was a property designated for public purposes, and that was a conclusive fact. Once that was decided using the prerogative, that was a fact that altered the application of the prerogative, but it was not to take away from the general principle that Sir Robert Phillimore had set forward.

  • Then the case of Littrell v United States of America. I need to just correct one point in my written case there, at the top of page 12489, the Court of Appeal did not in fact allow an appeal against the first instance judgment. What happened was that a judge at first instance dismissed an application or struck it out, on the basis that the Status of Forces agreement did not give the appellant the rights -- on analysis did not give the appellant the rights that he sought.

    That was upheld by a High Court judge but the Court of Appeal said that was wrong; they shouldn't have looked at the Status of Forces agreement at all, it was not part of domestic law, and they upheld the result, they upheld the strike-out because of state immunity.

  • They disapproved the reasoning.

  • Yes, but the relevant passages for your Lordships' note are Lord Justice Rose at MS 10932 and Lord Justice Hoffmann -- I have the internal reference here which is 93 B to 94 F, upholding Lord Justice Phillimore but there are two reasons why I don't draw the whole of that case to your attention. One is time and the other is because the first instance judge who was told he was wrong was a deputy High Court judge, Sir Robert Carnwath sitting as a deputy High Court judge.

    But there is an interesting passage in Lord Justice Hoffmann's speech again in there, where he talks about how if the Status of Forces agreement had been a question of domestic law, of course a court could look at it to look at the facts, and to look at -- somebody was a member of the force that had the benefit of that agreement. It was not saying you could never look at a treaty for that factual purpose; you cannot construe it or consider that it confers rights.

    What I say is that all those cases are entirely consistent with the passage in the speech of Lord Oliver's in the Tin Council case, which I think has been drawn to your attention by almost every counsel, but what we say is that that is authority for the causal link, between the inability of the Crown to alter domestic law by making or unmaking a treaty, and the prerogative power and the respect that the court will give to that for the power of the Crown to make foreign own affairs, or the executive to make foreign affairs.

    They will do it because it confers no rights in domestic law. There is nothing for the domestic court to look at; simply irrelevant as a source of rights.

  • The cases which the appellant relies on simply do not bear the meaning he ascribes to them. That is in our written case at paragraphs 20 to 23 and we also adopt Lord Pannick's submissions on this point.

    May I draw your attention, without turning it up in view of the time, to the McWhirter case, which is in core volume 3, tab 46, and starts at 1847. The appellant relies on this in their written case to suggest that the continued exercise of an untrammelled foreign relations power is specifically recognised in the Bill of Rights. That is right, it does say that, but it doesn't support the appellant's submission that the foreign affairs prerogative is untrammelled, and extends to changing domestic law. Indeed, we say it goes against that.

    McWhirter was an application for judicial review, brought by somebody who opposed our entry to the European Union, and he opposed the Crown's decision to sign the treaty of accession, because the Crown was divesting itself of the entire and perfect and full exercise of regal power and government; and that was rejected. But the reason it was rejected was that the signing of the treaty had no effect on domestic law, and because it was the passing by Parliament of the European Communities Act and the subsequent ratification if the bill was adopted, and not the executive act of signing the treaty which would be the basis for the domestic law which would then be applied by the domestic courts.

    You see that from the passages that Mr Eadie invited your attention to in the speech of Lord Denning at paragraph 8, and Lord Justice Phillimore at paragraph 8.

    Finally, I should mention the Hales case that was raised by Mr Larkin, and on that we say that is a pre-Bill of Rights case, and indeed arguably one of the causes of the passage of the Bill of Rights. It was overtaken by it, and we have put in a short clip of new materials. At tab 3 of that there is an interesting lecture by Professor Bradley about that case where he draws attention to the history, and suggests that the court which gave judgment in that case had been put under considerable external pressure, and the judges had been handpicked by one of the parties to the litigation, the latter of which at least cannot be said about this court.

  • What does this look like?

  • Yes, I don't invite you to look at it now, but it is a lecture that explains the history of the Hales case, and it is quite interesting, the sort of pressure that the King put the judges under.

    So we accept that those authorities are not conclusive. Some of them relate to varying common law rights, and we are talking about varying statutory rights; some of them are only indicative, and none of the older authorities are judicial in nature. But we say that they do provide at least a clear indication that there is an orthodox position on this question.

    The later cases we refer to, or authorities we refer to, are judicial. Can I also add to my list Higgs, which was cited by Lord Pannick; that is V21, tab 260, MS 7231, the speech of Lord Hoffmann. We also invite your attention to the view of Sir William Holdsworth, the Vinerian professor of English law, in an article in the 1942 Law Quarterly Review, volume 33, tab 456, MS 11316.

    He starts by observing that Blackstone's statement to the effect that there were no limitations on the treaty-making power of the Crown was not an accurate statement of law in the 18th century:

    "Two very definite limitations upon it were then and are now recognised. Though the Crown and the Crown alone can make a treaty, if the terms of the treaty involve the imposition of any charge on the subject or an alteration in the rules of English law, they cannot take effect without the sanction of Parliament. These two limitations are the result of the constitutional settlement effected by the great rebellion and the revolution."

    We say the appellant has simply failed to engage with this material or to provide any authority that, properly read, rebuts it.

    Having undertaken this historical enquiry, we ask: can the appellant's case on the existence of a prerogative to change the law be sustained? As Lord Camden said in Entick v Carrington: if it be law, authority for it will be found in our books; but there is not any, and the silence of the books disproves the appellant's case on this point, which is the point that he invites you simply to assume in his favour.

    It follows, we submit, that the foreign relations prerogative cannot be used to change the law or to vary the sources of law which apply in the domestic sphere.

    We submit that once the European Communities Act has become law and the European Union treaties have effect as sources of UK law, prior parliamentary authorisation is required to enter into or to resile from an EU treaty, and the provisions of the European Communities Act cannot be dispensed with in any other way.

    We say that is an absolutely basic constitutional principle, what one of the constellation of professors on the UK Constitutional Law Association blog described as "constitutional law 101". So it is perhaps unsurprising that when modern judges have even fleetingly considered the issue of the United Kingdom leaving the European Union, they have not considered it as some point to be determined or left over for argument in some later case, but simply assumed that any decision on withdrawing from the European Union would be one for Parliament.

    I am not going to go through the references, they are on our written case at paragraph 27: four cases, the dicta of three eminent constitutional judges. We have set out there what Lord Dyson said in the Shindler case. Mr Eadie suggested that it didn't -- Lord Dyson was not suggesting it would be for Parliament to decide whether the UK would leave the EU, that is not our reading of paragraph 19; but I do accept, of course, that none of these was a case where the judge was being called on to decide the point, but I do say it is significant that what these judges assumed was consistent with what I say was the orthodox position; I do say it is significant that are no dicta to the contrary.

    That is the end of my first point. There is no prerogative power to change the law, there is nothing to abrogate. Mr Eadie's submissions on the De Keyser principle are, as Mr Gordon suggested, in effect to say that the Government can change the constitution in a radical way, because Parliament has never said that it can't.

    Or, to put it at a perhaps more facetious level -- we are on the last day of the case -- Mr Eadie's submissions are the equivalent of arguing that because none of the attempts to catch the Loch Ness monster succeeded, the Loch Ness monster still roams free.

    So I turn to my second proposition which is that -- sorry, before that, I should say that if I were wrong on that, and I did need to rely on the principle of abrogation, then we would say that the European Communities Act did abrogate or clamp any prerogative power which may have existed; and if I did need it, and I say I don't, there are alternative submissions on that in our submissions for the first instance hearing, at paragraphs 29 through to 50. They start in the first core volume at 12152, and we would rely on those if we needed them.

    The second point then is to say, well, if there is no power to dispense with or change the law, would the appellant, if he triggered Article 50, in fact dispense with law and remove EU law rights? We say yes. We say this firstly because EU law is part of domestic law, so far as this court is concerned. The reason it is part of domestic law, and the only reason it is part of domestic law is because the core Parliament has so willed.

    That is the consequence of our dualist legal system and the rule of recognition; it is supported by the observations of Lord Mance in Pham, which are in paragraph 27 of our written case, and also by Lord Reed in HS2, paragraphs 78 to 79, which are at MS 535. We assume that that is common ground, but Lord Pannick took you to section 18 of the European Union Act 2011, and it is worth pointing out, if I dare make one more citation from Hansard, which has not always gone down well; but the Halsbury's Statutes edition at section 18, on page 153, does note Lord Howell introducing the bill, and saying that: the common law is already clear on this, Parliament is sovereign, EU law has an effect in the UK because, and solely because Parliament wills that it should be; the purpose of this section is to put that beyond speculation.

    My Lord, Lord Kerr said: what is article 18 doing; it is putting what is already the common law beyond speculation, so it has a declaratory effect.

    So any suggestion, we submit, that EU law, the law of the treaties and the rights arising from time to time under the treaties is in some way not domestic law is contrary to the express statutory provisions which confirm the pre-existing common law.

    But despite this common ground on the rule of recognition, the appellant's case is that EU law rights are nonetheless not domestic rights, because, he says, they are contingent on an exercise of executive prerogative to have any life at all. The executive chooses not to exercise the prerogative to bring those rights into play or to take away the ball, they are not rights anymore.

    So again, I use the language of a vessel, he says that when Parliament passed the European Communities Act in 1972, it just created an empty vessel which the minister could at any time fill or empty at will by using his foreign relations prerogative. If that was the case, I submit it is the broadest Henry VIII clause in history. But on his case, the Secretary of State says that except so far as he was constrained by post European Communities Act statutes, then at any time he could have increased the flow of EU law or decreased it or turned it off altogether, without any need for further statutory authority, through what he described as the conduit, section 2(1) of the Act.

    So if the appellant decides to leave the EU, he suggests, as I understand it, that that is not dispensing with the law, because the European Communities Act can stay on the statute book, and so can any EU law rights which exist under the treaties. It is just that the treaties have become a nil class(?) because they no longer apply to the United Kingdom.

    That is his argument, as I understand it, but it is not right, and it is not right on the language of the Act, and it is not right when you look at statutory intention. On the statutory language, we accept that this is an ambulatory statute, but it is not ambulatory in the way that the appellant says it is. We deal with this in our written case at paragraphs 55 to 58, MS 12500, but what we say is that section 1(2) of the Act sets out a list of what the treaties are, for the purposes of the European Communities Act, and the treaties, capital T, are treaties specified by Parliament in primary legislation. That is the source of the law in the domestic sphere, and that is a matter which is in control of Parliament. If it's not a capital T, treaty, as defined by Parliament, it is not a treaty.

    In section 2 of the Act, section 2(1) provides for what the effect of those treaties will be in domestic law. Although it is very familiar, and we have gone through it a lot of times, can I just ask you to turn it up while I talk about it. It is in MS 18 in the first core volume, and it says that:

    "All such rights, powers, liabilities, obligations ... from time to time created or arising by or under the treaties" --

  • Yes.

    "... as in accordance with the treaties ... without further enactment to be given legal effect ... shall be recognised and available in law."

    And so on.

    That is what a Community law right is, because that is what Parliament says in section 2(1). It is significant, I say, that the words "from time to time" come under the rights et cetera which flow from the treaties and not the treaties; it is the rights from time to time, not the treaties from time to time. The scope of the treaties having been established by section 1(2), the conduit, in section 2(1), is for the rights from time to time under the treaties but not the treaties themselves.

    Those have been fixed by Parliament. Given that they have been fixed by Parliament, what follows is that the directly affected rights which are created by the treaties themselves are immutable, rights of free movement and non-discrimination and so on, because they are rights under the treaties; and the treaties are the treaties that Parliament says are the treaties.

    So it is true that the content of rights created or arising under the treaties by EU legislative acts like regulations, or directly effective provisions of directives might change from time to time, but insofar as those changes become part of domestic law, that is a result of Parliament's decision in section 2(1) to give automatic effect to EU legislative acts and decisions of EU legislative bodies. It is not the direct consequence of the actions of the UK Government exercising its prerogative power in the field of international affairs.

    That is the point in the Youssef case which you discussed with some of my learned friends yesterday, the Security Council resolution given effect through an EU regulation. Paragraph 34, which is supplementary MS 679, we consider to be an authority in our favour.

    The appellant's reading also ignores the statutory purpose. Lord Mance asked if the European Communities Act was neutral as to whether United Kingdom was a member of the EU. We say clearly not, and on that point we rely on the submissions of Lord Pannick and Mr Chambers.

  • The consequences of the case advanced by the appellant -- the argument is not only wrong, it does have very serious consequences, under this Act, but also for the whole relationship between the executive and Parliament. As to this Act, if the appellant is right, then by the sweep of the executive pen, the appellant can dispense with a whole swathe of domestic law rights, many of which are fundamental in character and which could not be restored by a future Parliament or indeed by any other UK constitutional actor acting unilaterally.

    We have set out some of those fundamental rights in the annex to our written case, MS 12507. I have been asked to say particularly that my clients, and those that support them, consider that their EU citizenship is a fundamental part of their identity. So that if they are to be deprived of it, it is their elected representatives in Parliament who should in law be responsible for that.

    I said there might be other wider consequences and can I give you one example of that, very briefly. If the Government is right, then it is certainly arguable, perhaps probable, that the executive could effectively dispense with the Human Rights Act and the convention rights which it incorporates into domestic law without the prior consent of Parliament.

    I don't have time to deal with that point in any detail, but we have put the relevant provisions in the additional bundle and the short point is that section 1 defines what the convention rights are, but section 21 says that those rights are the rights in force from time to time -- as they applied to the UK from time to time. So if under Article 50(8) of the convention, the executive in the exercise of the prerogative denounces the convention, those rights as they apply in the UK are no rights, they can stay on the statute book, they can stay in schedule 1 but they are not of any effect. The Human Rights Act would technically be in force but it would be a dead letter.

  • Can I ask you one point on that, it may not matter, but before the Human Rights Act, there was a right of petition, individual petition to the Court of Human Rights, which was granted by executive power without any statutory underpinning, I think -- (Inaudible). I take it that before the Human Rights Act, it would have been possible for the Government, by executive prerogative action, to withdraw from the -- and effectively take away your individual right of petition, but the difference is that now it is guaranteed by statute.

  • Yes, because they were not domestically enforceable rights. They had a persuasive effect --

  • But they were individual rights --

  • They were individual rights in international law which as a matter of policy --

  • Is that not comparable to your rights -- or individual rights as an EU citizen, which is a European right?

  • No, because they are only rights in domestic law and recognised by these courts because Parliament says so, so they are domestic rights.

  • It is the Act which makes the difference, yes.

  • Yes. That is another example of the significant wider constitutional consequences.

    Can I, in my very short remaining time, which I am very grateful I have, pick up on two points which arose in argument over the last couple of days.

    First, on the 2015 Referendum Act --

  • If I can just interrupt, just thinking aloud, I suppose if rights were created under the prerogative, then they could equally be taken away under the prerogative, and I am thinking of the criminal injuries compensation scheme which originally was created under the prerogative.

  • Yes, they are not statutory rights, so they can be taken away. If the prerogative -- yes, if the Crown in the GCHQ case can take away your right to strike, it can also give you back your right to strike, or decide you are going to get very good pay and conditions, take it away again, it is not a contractual right, it is a prerogative power.

  • Yes, and there, the Crown is not acting in a particular capacity as an employer vis-a-vis its employees, for example, but it is creating a scheme of rights for the entire population which it can then take away again at its own hand.

  • Yes, but it is a very unusual situation, that, and that is a prerogative which has now disappeared, as prerogatives tend to do, when Parliament gets involved.

  • You were going to turn to the 2015 Act.

  • The 2015 Act. Can I just address the suggestion that was put by my Lord, Lord Neuberger, in particular to Lord Pannick, that the 2015 Act could in some way revive or legitimise the use of the prerogative power if it existed -- put into abeyance by the 1972 Act and subsequent legislation, and of course this would only arise if we were wrong on the extent of the prerogative.

  • But even in those circumstances, it would be necessary to appreciate that assuming it was the European Communities Act which had put the prerogative into abeyance, it was also the European Communities Act which created European Union law rights which are described as fundamental rights, and also created rights which -- or a scheme of law which was being described as constitutional by our courts.

    So it would be necessary to accept, as this court has recognised, that the European Communities Act and the devolution acts are constitutional statutes. That means that if some later statute were to operate, so as to undo the effect of the European Communities Act and to bring back the prerogative which had been previously held in abeyance, it would require clear and express statutory language to do that.

    That language would be required under the principle of legality, the Simms principle, and also because of the principle set out in relation to constitutional statutes by Lord Justice Laws in Thoburn. There is no such express language, and to hold that the 2015 Act by implication had such an effect, that would be an act of judicial legislation.

    If Parliament had intended a particular result of the 2015 referendum to have a particular constitutional consequence, it would have stipulated that, as it had with other referenda, and you have been told about the alternative vote referendum, but may I also draw your attention, without turning it up, perhaps, to the provisions of section 1(2) of the Northern Ireland --

  • We saw that, we commented on that yesterday.

  • Yes. The final point, my Lord, is about Lord Carnwath's question on Wednesday in the transcript at page 46, about Article 50(3). He pointed out that in seeking to constrain the manner in which the United Kingdom's vote could be exercised, Parliament made specific reference in the schedule of the 2011 Act to Article 50(3).

    Can I explain very briefly why this says nothing either way about the United Kingdom's own invocation of Article 50. It is quite a complicated point but I think I have crystallised it.

    You will recall that under the main provisions of in European Union Act 2011, a complicated system of controls was imposed on the ability of ministers to transfer powers. Essentially it had to have either a referendum and an act of Parliament or an act of Parliament. I am not going to deal with that complicated system of controls, it is most clearly in section 4(1)(k). But the provisions to which they applied are in schedule 1, which is at volume 1 of the core volume, tab 6, MS 141. It is a final reference but can I ask you to turn it up, please.

    You will see there -- 155, I am so sorry, 155 on the memory stick. You will see at the bottom of that list of provisions, Article 50(3), the decision of the European Council extending time during which treaties apply to state withdrawing from the EU. What matters in my submission is the heading:

    "The treaty provisions where amendment removing need for a unanimity, consensus or common accord would attract a referendum."

    That is one of the ones in that list. What that means for the purposes of this case is that when it included that provision in this schedule, Parliament was not contemplating the regulation of the conditions under which the UK itself could invoke Article 50, or indeed the circumstances in which UK could give or withhold approval or extension of time if another member state was intending to leave the EU.

    What it was is it was just part of a list of provisions in respect of which the United Kingdom Parliament provided by statute that the Government could not agree to give up an existing veto power under the treaties without a referendum.

    As Lord Pannick said and we agree, it is unsurprising that the 2008 and 2011 acts were silent on the constitutional arrangements which would permit the United Kingdom to trigger Article 50, because it is so long established and so fundamental a constitutional principle, that the Government cannot dispense with law without parliamentary authority; and it is, or at least it was until the appellant put it in issue in this case, elementary.

    So the People's Challenge --

  • But just picking up that point, I know that is what Lord Pannick said, but there is nothing in the contemporary papers to suggest that that was in anyone's mind, and as far as one can see from the discussion there was in the select committee and so on, this withdrawal in 2008 was simply seen as something which confirmed parliamentary sovereignty and therefore did not (Inaudible) specific provision. But I don't think there is any suggestion at that stage that anyone was discussing the sort of issues we have been discussing here.

  • I say they were not discussing them because it was so obvious --

  • You say it was so obvious, but that is your interpretation.

  • I say it flows inexorably from that entire history, from the civil war --

  • I understand the way you put it, but the point I am asking is there is nothing in the contemporary papers to suggest that was actually given any --

  • There is nothing to suggest that it occurred to anyone that withdrawal from the EU could be undertaken without a statute, when it had taken a statute to take us in.

    Yes, and I am reminded that the CRAG green paper -- I don't have the reference, you were given it yesterday, I think by Mr Chambers, the CRAG green paper specifically referred to that point.

    I have run out of time. The People's Challenge respondents seek to uphold the divisional court's judgment in this case, not only for its relevance and importance to the issues before this court, but because of its importance in a democratic society which is based on the separation of powers and the rule of law, of the constitutional orthodoxy which the divisional court's judgment upholds, and we respectfully invite you to dismiss this appeal.

  • Thank you very much, Ms Mountfield.

    Mr Gill. We will sit a little bit late to give you your 20 minutes.