LORD NEUBERGER, LADY HALE, LORD MANCE, LORD KERR, LORD
CLARKE, LORD WILSON, LORD SUMPTION, LORD HODGE:
Introductory
1.
On 1 January 1973, the United Kingdom became a member of the European
Economic Community (“the EEC”) and certain other associated European
organisations. On that date, EEC law took effect as part of the domestic law of
the United Kingdom, in accordance with the European Communities Act 1972 which
had been passed ten weeks earlier. Over the next 40 years, the EEC expanded
from nine to 28 member states, extended its powers or “competences”, merged
with the associated organisations, and changed its name to the European
Community in 1993 and to the European Union in 2009.
2.
In December 2015, the UK Parliament passed the European Union Referendum
Act, and the ensuing referendum on 23 June 2016 produced a majority in favour
of leaving the European Union. UK government ministers (whom we will call
“ministers” or “the UK government”) thereafter announced that they would bring
UK membership of the European Union to an end. The question before this Court
concerns the steps which are required as a matter of UK domestic law before the
process of leaving the European Union can be initiated. The particular issue is
whether a formal notice of withdrawal can lawfully be given by ministers
without prior legislation passed in both Houses of Parliament and assented to
by HM The Queen.
3.
It is worth emphasising that nobody has suggested that this is an
inappropriate issue for the courts to determine. It is also worth emphasising
that this case has nothing to do with issues such as the wisdom of the decision
to withdraw from the European Union, the terms of withdrawal, the timetable or
arrangements for withdrawal, or the details of any future relationship with the
European Union. Those are all political issues which are matters for ministers
and Parliament to resolve. They are not issues which are appropriate for
resolution by judges, whose duty is to decide issues of law which are brought
before them by individuals and entities exercising their rights of access to
the courts in a democratic society.
4.
Some of the most important issues of law which judges have to decide
concern questions relating to the constitutional arrangements of the United
Kingdom. These proceedings raise such issues. As already indicated, this is not
because they concern the United Kingdom’s membership of the European Union; it
is because they concern (i) the extent of ministers’ power to effect changes in
domestic law through exercise of their prerogative powers at the international
level, and (ii) the relationship between the UK government and Parliament on
the one hand and the devolved legislatures and administrations of Scotland,
Wales and Northern Ireland on the other.
5.
The main issue on this appeal concerns the ability of ministers to bring
about changes in domestic law by exercising their powers at the international
level, and it arises from two features of the United Kingdom’s constitutional
arrangements. The first is that ministers generally enjoy a power freely to
enter into and to terminate treaties without recourse to Parliament. This
prerogative power is said by the Secretary of State for Exiting the European
Union to include the right to withdraw from the treaties which govern UK
membership of the European Union (“the EU Treaties”). The second feature is
that ministers are not normally entitled to exercise any power they might
otherwise have if it results in a change in UK domestic law, unless statute, ie
an Act of Parliament, so provides. The argument against the Secretary of State
is that this principle prevents ministers withdrawing from the EU Treaties, until
effectively authorised to do so by a statute.
6.
Most of the devolution issues arise from the contention that the terms
on which powers have been statutorily devolved to the administrations of
Scotland, Wales and Northern Ireland are such that, unless Parliament provides
for such withdrawal by a statute, it would not be possible for formal notice of
the United Kingdom’s withdrawal from the EU Treaties to be given without first
consulting or obtaining the agreement of the devolved legislatures. And, in the
case of Northern Ireland, there are certain other arguments of a constitutional
nature.
7.
The main issue was raised in proceedings brought by Gina Miller and Deir
dos Santos (“the applicants”) against the Secretary of State for Exiting the
European Union in the Divisional Court of England and Wales. Those proceedings
came before Lord Thomas of Cwmgiedd LCJ, Sir Terence Etherton MR and Sales LJ.
They ruled against the Secretary of State in a judgment given on 3 November
2016 - R (Miller) v The Secretary of State for Exiting the European Union
[2016] EWHC 2768 (Admin). This decision now comes to this Court pursuant to an
appeal by the Secretary of State.
8.
The applicants are supported in their opposition to the appeal by a
number of people, including (i) a group deriving rights of residence in the UK
under EU law on the basis of their relationship with a British national or with
a non-British EU national exercising EU Treaty rights to be in the United
Kingdom, (ii) a group deriving rights of residence from persons permitted to
reside in the UK because of EU rights, including children and carers, (iii) a
group mostly of UK citizens residing elsewhere in the European Union, (iv) a
group who are mostly non-UK EU nationals residing in the United Kingdom, and
(v) the Independent Workers Union of Great Britain. The Secretary of State’s
case is supported by Lawyers for Britain Ltd, a group of lawyers.
9.
Devolution arguments relating to Northern Ireland were raised in
proceedings brought by Steven Agnew and others and by Raymond McCord against
the Secretary of State for Exiting the European Union and the Secretary of
State for Northern Ireland. Those arguments were rejected by Maguire J in a
judgment given in the Northern Ireland High Court on 28 October 2016 - Re
McCord, Judicial Review [2016] NIQB 85. On application by the Attorney
General for Northern Ireland, Maguire J referred four of the issues in the Agnew
case to this court for determination. Following an appeal against Maguire J’s
decision, the Northern Ireland Court of Appeal has also referred one issue to
this Court.
10.
The Attorney General for Northern Ireland supports the Secretaries of
State’s case that no statute is required before ministers can give notice of
withdrawal. In addition, there are interventions on devolution issues by the
Lord Advocate on behalf of the Scottish government and the Counsel General for
Wales on behalf of the Welsh government; they also rely on the Sewel Convention
(as explained in paras 137 to 139 below). They support the argument that a statute
is required before ministers can give notice of withdrawal, as do the advocates
for Mr McCord and for Mr Agnew.
11.
We are grateful to all the advocates and solicitors involved for the
clarity and skill with which the respective cases have been presented orally
and in writing, and for the efficiency with which the very substantial
documentation was organised. We have also been much assisted by a number of
illuminating articles written by academics following the handing down of the
judgment of the Divisional Court. It is a tribute to those articles that they
have resulted in the arguments advanced before this Court being somewhat
different from, and more refined than, those before that court.
12.
As mentioned in paras 7 and 9 above, the appellant in the English and
Welsh appeal is the Secretary of State for Exiting the European Union, and the
Northern Irish proceedings were brought against the Secretary of State for
Exiting the European Union and the Secretary of State for Northern Ireland. For
the sake of simplicity, we will hereafter refer to either or both Secretaries
of State simply as “the Secretary of State”.
The United Kingdom’s
Relationship with the European Union 1971-2016
The relationship between the UK and the EU 1971-1975
13.
From about 1960, the UK government was in negotiations with the then
member states of the EEC with a view to the United Kingdom joining the EEC and
associated European organisations. In October 1971, when it had become apparent
that those negotiations were likely to be successful, and following debates in
each House, the House of Lords and the House of Commons each resolved to
“approve … Her Majesty’s Government’s decision of principle to join the
European Communities on the basis of the arrangements which have been
negotiated”. In the course of the debate in the House of Commons, the Prime
Minister, Mr Heath, said that he did not think that “any Prime Minister has …
in time of peace … asked the House to take a positive decision of such
importance as I am asking it to take”, and that he could not “over-emphasise
tonight the importance of the vote which is being taken, the importance of the
issue, the scale and quality of the decision and the impact that it will have
equally inside and outside Britain”. In a debate in the House of Commons in
January 1972, in which the earlier resolution was effectively re-affirmed, Mr
Rippon, the Chancellor of the Duchy of Lancaster, said “I do not think
Parliament in negotiations on a treaty has ever been brought so closely into
the process of treaty-making as on the present occasion”, adding that “we all
accept the unique character of the Treaty of Accession”.
14.
On 22 January 1972, two days after that later debate, ministers signed a
Treaty of Accession which provided that the United Kingdom would become a member
of the EEC on 1 January 1973 and would accordingly be bound by the 1957 Treaty
of Rome, which was then the main treaty in relation to the EEC, and by certain
other connected treaties. As with most international treaties, the 1972
Accession Treaty was not binding unless and until it was formally ratified by
the United Kingdom.
15.
A Bill was then laid before Parliament, and after it had been passed by
both Houses, it received Royal assent on 17 October 1972, when it became the
European Communities Act 1972. The following day, 18 October 1972, ministers
ratified the 1972 Accession Treaty on behalf of the United Kingdom, which
accordingly became a member of the EEC on 1 January 1973.
16.
The long title of the 1972 Act described its purpose as “to make
provision in connection with the enlargement of the European Communities to
include the United Kingdom …”. Part I of the 1972 Act consisted of sections 1
to 3, which contained its “General Provisions”, and they are of central
importance to these proceedings.
17.
Section 1(2) of the 1972 Act contained some important definitions. “The
Communities” meant the EEC and associated communities (now amended to “the EU”
meaning the European Union). And “the Treaties” and “the Community Treaties”
(now amended to “the EU Treaties”) were the treaties described in Schedule 1
(which were the existing treaties governing the rules and powers of the EEC at
that time), the 1972 Accession Treaty itself, and “any other treaty entered
into by any of the Communities, with or without any of the member States, or
entered into, as a treaty ancillary to any of the Treaties, by the United
Kingdom”. The use of a capital T in “the Treaties” and in “the EU Treaties” was
significant. It meant that future treaties which were concerned with changing
the membership or redefining the rules of the EEC could only become “Treaties”
and “EU Treaties” and have effect in UK law as such if they were added to
section 1(2) by an amending statute. By contrast, “ancillary” treaties covered
other treaties entered into by the European Union or by the United Kingdom as a
treaty ancillary to the EU Treaties. By virtue of section 1(3), even such an
ancillary treaty did not take effect in UK law unless and until it was declared
to do so by an Order in Council which had first to be “approved” in draft form
“by resolution of each House of Parliament”.
18.
Section 2 of the 1972 Act was headed “General Implementation of
Treaties”. Section 2(1) of the 1972 Act was in these terms:
“All such rights, powers,
liabilities, obligations and restrictions from time to time created or arising
by or under the Treaties, and all such remedies and procedures from time to
time provided for by or under the Treaties, as in accordance with the Treaties
are without further enactment to be given legal effect or used in the United
Kingdom shall be recognised and available in law, and be enforced, allowed and
followed accordingly …”
19.
Section 2(2) of the 1972 Act provided that “Her Majesty may by Order in
Council, and any designated Minister or department may by regulations, make
provision” (a) “for the purpose of implementing any Community [now EU]
obligation of the United Kingdom” (which is defined as any obligation “created
or arising by or under the Treaties”) or “enabling any rights … enjoyed … by
the United Kingdom under or by virtue of the Treaties to be exercised”, and (b)
for ancillary purposes, including “the operation from time to time of
subsection (1)”. Subsection (2) has since been amended, but nothing hangs on
the amendments for present purposes. Schedule 2 to the 1972 Act contained
“Provisions as to Subordinate Legislation” in relation to the powers conferred
by section 2(2).
20.
Section 2(4) provided as follows:
“The provision that may be made
under subsection (2) above includes ... any such provision (of any such extent)
as might be made by Act of Parliament, and any enactment passed or to be
passed, other than one contained in this Part of this Act, shall be construed
and have effect subject to the foregoing provisions of this section …”
21.
Section 3 of the 1972 Act provided, among other things, for any question
as to the meaning and effect of the Treaties, or as to the validity, meaning or
effect of any “Community instrument” (now “EU instrument”) to be treated as a
question of EU law by the UK courts, and it further provided for such
determination to be made in accordance with principles laid down by the
European Court of Justice (“the Court of Justice”) or, if necessary, to be
referred to the Court of Justice.
22.
Part II of the 1972 Act, which contained sections 4 to 12, and
incorporated Schedules 3 and 4, set out a number of statutory repeals and
amendments which were needed to enable UK domestic law to comply with the
requirements of EU law, that is the law from time to time laid down in the EU
Treaties, Directives and Regulations, as interpreted by the Court of Justice.
23.
Following a manifesto commitment made during a general election in 1974,
the UK government decided to hold a referendum on whether the United Kingdom
should remain in the EEC. To that end, it laid a Bill before Parliament which
was duly enacted as the Referendum Act 1975. The referendum pursuant to that
Act took place on 5 June 1975, and a majority of those who voted were in favour
of remaining in the EEC.
The relationship between the UK and the EU after 1975
24.
In the past 40 years, over 20 treaties relating to the EEC, the European
Community and the European Union were signed on behalf of the member states, in
the case of the United Kingdom by ministers. After being signed, each such
treaty was then added to the list of “Treaties” in section 1(2) of the 1972 Act
through the medium of an amendment made to that statute by a short
appropriately worded statute passed by Parliament, and the treaty was then
ratified by the United Kingdom. Some of these Treaties were concerned with
redefining and expanding the competences of the EEC, the European Community and
the European Union and changing the constitutional role of the European
Parliament within the European Community or Union. They included the Single
European Act signed in 1986, Titles II, III and IV of the Maastricht Treaty on
European Union of 7 February 1992 (“the TEU”), the 1997 Amsterdam Treaty, the
2001 Treaty of Nice, and the Treaty of Lisbon amending the TEU and the Treaty
on the Functioning of the European Union (“TFEU”), both signed in Lisbon on 13
December 2007 - see respectively section 1(2)(j), added by the European
Communities (Amendment) Act 1986; section 1(2)(k), added by the European
Communities (Amendment) Act 1993; section 1(2)(o), added by the European
Communities (Amendment) Act 1998; section 1(2)(p), added by the European
Communities (Amendment) Act 2002; and section 1(2)(s), added by the European
Union (Amendment) Act 2008.
25.
The Treaty of Lisbon introduced into the EU Treaties for the first time
an express provision entitling a member state to withdraw from the European
Union. It did this by inserting a new article 50 into the TEU. This article
(“article 50”) provides as follows:
“1. Any member state may
decide to withdraw from the Union in accordance with its own constitutional
requirements.
2. A member state which
decides to withdraw shall notify the European Council of its intention. In the
light of the guidelines provided by the European Council, the Union shall
negotiate and conclude an agreement with that state, setting out the arrangements
for its withdrawal …
3. The Treaties shall
cease to apply to the state in question from the date of entry into force of
the withdrawal agreement or, failing that, two years after the notification
referred to in paragraph 2, unless the European Council, in agreement with the
member state concerned, unanimously decides to extend this period. …”
26.
In these proceedings, it is common ground that notice under article
50(2) (which we shall call “Notice”) cannot be given in qualified or
conditional terms and that, once given, it cannot be withdrawn. Especially as
it is the Secretary of State’s case that, even if this common ground is
mistaken, it would make no difference to the outcome of these proceedings, we
are content to proceed on the basis that that is correct, without expressing
any view of our own on either point. It follows from this that once the United
Kingdom gives Notice, it will inevitably cease at a later date to be a member
of the European Union and a party to the EU Treaties.
27.
After 1975, in addition to the amending statutes referred to in para 24
above, statutes were enacted to give effect to changes in the way that members
of the European Parliament were selected. The first was the European Assembly
Elections Act 1978, which contained in section 6 a stipulation that no new
treaty providing for an increase in the powers of the European Assembly (as it
then was) should be ratified unless approved by an Act of Parliament. This
provision was re-enacted as section 12 of the European Parliamentary Elections
Act 2002. Section 1 of the 2002 Act provided for a specific number of Members
of the European Parliament (“MEPs”) for specified regions of the United
Kingdom. Section 8 of the 2002 Act stated that a person was entitled to vote in
elections to the European Parliament if he or she satisfied certain residence
requirements, and section 10 identified the (very limited) categories of people
who were disqualified from standing as MEPs.
28.
In addition to adding the Treaty of Lisbon and the TFEU to section 1(2)
of the 1972 Act, the 2008 Act, referred to at the end of para 24 above,
contained certain restrictions on the UK government’s agreement to changes in
the rules of the European Union. Section 5 provided that any treaty which
amended the TEU or the TFEU by altering the competences of the European Union,
or which altered the decision-making processes of the European Union or its
institutions in such a way as to dilute the influence of individual member
states, should not be ratified by ministers “unless approved by Act of
Parliament”. Section 6 of the 2008 Act stated that ministers should not support
any decision under certain specified articles of the TEU and of the TFEU unless
both Houses of Parliament had approved a motion sanctioning that course.
29.
Subject to an immaterial exception, the European Union Act 2011 repealed
and replaced sections 5 and 6 of the 2008 Act. Part I of the 2011 Act included
section 1 which was “Introductory”, sections 2 to 10, which imposed
“Restrictions” both “relating to amendments of TEU and TFEU” and “relating to
other decisions under TEU and TFEU”, and sections 11 to 13, which related to
the conduct of referendums. Sections 2 to 5 imposed restrictions on the
ratification by the United Kingdom of any treaty which amended or replaced TEU
or TFEU, and also on ministers approving certain specified types of EU
decisions under the so-called simplified revision procedure. Those restrictions
were that (a) a statement relating to the treaty or decision had to be laid
before Parliament, (b) the treaty or decision had to be approved by statute,
and, (c) in broad terms, where the treaty or decision increased the competences
of the European Union, it had to be approved in a UK-wide referendum. Section 6
provided that ministers should not, without prior approval both in a statute
and in a UK-wide referendum, vote in favour of certain decisions, including
those which resulted in a dilution in the influence of individual member states
in relation to a number of different articles of the TEU and TFEU including in
particular article 50(3). Sections 7 to 10 of the 2011 Act contained further
restrictions on ministers voting in favour of certain measures under the TEU
and TFEU without the prior approval of Parliament.
30.
Section 18 of the 2011 Act provided as follows:
“Directly applicable
or directly effective EU law (that is, the rights, powers, liabilities,
obligations, restrictions, remedies and procedures referred to in section 2(1)
of the European Communities Act 1972) falls to be recognised and available in
law in the United Kingdom only by virtue of that Act or where it is required to
be recognised and available in law by virtue of any other Act.”
31.
Following a manifesto commitment in the 2015 general election to hold a
referendum on the issue of EU membership, the UK government laid before
Parliament a Bill which became the 2015 Act. Section 1 provided that “[a]
referendum is to be held” on a date no later than 31 December 2017 “on whether
the United Kingdom should remain a member of the European Union”, and it
specified the question which should appear on the ballot papers. The remaining
sections were concerned with questions such as entitlement to vote, the conduct
of the referendum, rules about campaigning and financial controls.
32.
The referendum duly took place throughout the United Kingdom on 23 June
2016, and it resulted in a majority in favour of leaving the European Union.
Ministers have made it clear that the UK government intends to implement the
result of the referendum and to give Notice by the end of March 2017.
33.
On 7 December 2016, following a debate, the House of Commons resolved
“[to recognise] … that this House should respect the wishes of the United
Kingdom as expressed in the referendum on 23 June; and further [to call] on the
Government to invoke article 50 by 31 March 2017”.
The main issue: the
1972 Act and prerogative powers
Summary of the arguments on the main issue
34.
The Secretary of State’s case is based on the existence of the
well-established prerogative powers of the Crown to enter into and to withdraw
from treaties. He contends that ministers are entitled to exercise this power
in relation to the EU Treaties, and therefore to give Notice without the need
for any prior legislation. Following the giving of Notice by the end of March
2017, ministers intend that a “Great Repeal Bill” will be laid before
Parliament. This will repeal the 1972 Act and, wherever practical, it will
convert existing EU law into domestic law at least for a transitional period.
Under article 50, withdrawal will occur not more than two years after the
Notice is given (unless that period is extended by unanimous agreement among
the other member states), and it is intended that the Great Repeal Bill will
come into force at that point.
35.
As was made clear by Lord Browne-Wilkinson in R v Secretary of State
for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, 552,
ministers’ intentions are not law, and the courts cannot proceed on the
assumption that they will necessarily become law. That is a matter for
Parliament to decide in due course. The issues before us must be resolved in
accordance with the law as it stands, as the Secretary of State rightly
accepted.
36.
The applicants’ case in that connection is that when Notice is given,
the United Kingdom will have embarked on an irreversible course that will lead
to much of EU law ceasing to have effect in the United Kingdom, whether or not
Parliament repeals the 1972 Act. As Lord Pannick QC put it for Mrs Miller, when
ministers give Notice they will be “pulling … the trigger which causes the
bullet to be fired, with the consequence that the bullet will hit the target
and the Treaties will cease to apply”. In particular, he said, some of the
legal rights which the applicants enjoy under EU law will come to an end. This,
he submitted, means that the giving of Notice would pre-empt the decision of
Parliament on the Great Repeal Bill. It would be tantamount to altering the law
by ministerial action, or executive decision, without prior legislation, and
that would not be in accordance with our law.
37.
Following opening remarks made by HM Attorney General, Mr Eadie QC in
his submissions on behalf of the Secretary of State, did not challenge much if
any of the factual basis of these assertions, but he did challenge the
conclusions that were said to derive from them. He argued that the fact that
significant legal changes will follow from withdrawing from the EU Treaties
does not prevent the giving of Notice, because the prerogative power to
withdraw from treaties was not excluded by the terms of the 1972 Act, and that,
in any event, “acts of the government in the exercise of the prerogative can
alter domestic law”. More particularly, he contended that the 1972 Act gave
effect to EU law only insofar as the EU Treaties required it, and that that
effect was therefore contingent upon the United Kingdom remaining a party to
those treaties. Accordingly, he said, in the 1972 Act Parliament had
effectively stipulated that, or had sanctioned the result whereby, EU law
should cease to have domestic effect in the event that ministers decided to
withdraw from the EU Treaties.
38.
Mr Eadie also relied on the fact that, while statutes enacted since 1972
have imposed Parliamentary controls over the exercise of prerogative powers in
relation to the EU Treaties, they have not touched the prerogative power to
withdraw from them. Implicitly, therefore, he contended, Parliament has recognised
that the power to withdraw from such treaties exists and is exercisable without
prior legislation. Mr Eadie also suggested that the 2015 Act was enacted on the
assumption that the result of the referendum would be decisive. Mr Eadie’s
reliance on the legislation since 1972 was largely for the purpose of
supporting his argument on the effect of the 1972 Act, but he did raise an
argument that the legislation from 1972 to 2015 should be looked at as a whole.
Also, in answer to a question from the Court, he adopted a suggestion that,
even if Parliamentary authority would otherwise have been required, the 2015
Act and the subsequent referendum dispensed with that requirement, but he did
not develop that argument, in our view realistically.
39.
Before addressing these arguments, it is right to consider some relevant
constitutional principles and in particular the Royal prerogative.
The constitutional background
40.
Unlike most countries, the United Kingdom does not have a constitution
in the sense of a single coherent code of fundamental law which prevails over
all other sources of law. Our constitutional arrangements have developed over
time in a pragmatic as much as in a principled way, through a combination of
statutes, events, conventions, academic writings and judicial decisions.
Reflecting its development and its contents, the UK constitution was described
by the constitutional scholar, Professor AV Dicey, as “the most flexible polity
in existence” - Introduction to the Study of the Law of the Constitution
(8th ed, 1915), p 87.
41.
Originally, sovereignty was concentrated in the Crown, subject to
limitations which were ill-defined and which changed with practical exigencies.
Accordingly, the Crown largely exercised all the powers of the state (although
it appears that even in the 11th century the King rarely attended meetings of
his Council, albeit that its membership was at his discretion). However, over
the centuries, those prerogative powers, collectively known as the Royal
prerogative, were progressively reduced as Parliamentary democracy and the rule
of law developed. By the end of the 20th century, the great majority of what
had previously been prerogative powers, at least in relation to domestic
matters, had become vested in the three principal organs of the state, the
legislature (the two Houses of Parliament), the executive (ministers and the
government more generally) and the judiciary (the judges). It is possible to
identify a number of seminal events in this history, but a series of statutes
enacted in the twenty years between 1688 and 1707 were of particular legal
importance. Those statutes were the Bill of Rights 1688/9 and the Act of
Settlement 1701 in England and Wales, the Claim of Right Act 1689 in Scotland, and
the Acts of Union 1706 and 1707 in England and Wales and in Scotland
respectively. (Northern Ireland joined the United Kingdom pursuant to the Acts
of Union 1800 in Britain and Ireland).
42.
The independence of the judiciary was formally recognised in these
statutes. In the broadest sense, the role of the judiciary is to uphold and
further the rule of law; more particularly, judges impartially identify and
apply the law in every case brought before the courts. That is why and how
these proceedings are being decided. The law is made in or under statutes, but
there are areas where the law has long been laid down and developed by judges
themselves: that is the common law. However, it is not open to judges to apply
or develop the common law in a way which is inconsistent with the law as laid
down in or under statutes, ie by Acts of Parliament.
43.
This is because Parliamentary sovereignty is a fundamental principle of
the UK constitution, as was conclusively established in the statutes referred
to in para 41 above. It was famously summarised by Professor Dicey as meaning
that Parliament has “the right to make or unmake any law whatsoever; and
further, no person or body is recognised by the law as having a right to
override or set aside the legislation of Parliament" - op cit, p 38. The
legislative power of the Crown is today exercisable only through Parliament.
This power is initiated by the laying of a Bill containing a proposed law
before Parliament, and the Bill can only become a statute if it is passed
(often with amendments) by Parliament (which normally but not always means both
Houses of Parliament) and is then formally assented to by HM The Queen. Thus,
Parliament, or more precisely the Crown in Parliament, lays down the law
through statutes - or primary legislation as it is also known - and not in any
other way.
44.
In the early 17th century Case of Proclamations (1611) 12 Co Rep 74, Sir Edward Coke CJ said that “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”. Although this statement may have been controversial at the time, it had
become firmly established by the end of that century. In England and Wales, the
Bill of Rights 1688 confirmed that “the pretended power of suspending of laws
or the execution of laws by regall authority without consent of Parlyament is
illegall” and that “the pretended power of dispensing with laws or the
execution of laws by regall authoritie as it hath beene assumed and exercised
of late is illegall”. In Scotland, the Claim of Right 1689 was to the same
effect, providing that “all Proclamationes asserting ane absolute power to Cass
[ie to quash] annull and Dissable lawes … are Contrair to Law”. And article 18
of the Acts of Union of 1706 and 1707 provided that (with certain irrelevant
exceptions) “all … laws” in Scotland should “remain in the same force as before
… but alterable by the Parliament of Great Britain”.
45.
The Crown’s administrative powers are now exercised by the executive, ie
by ministers who are answerable to the UK Parliament. However, consistently
with the principles established in the 17th century, the exercise of those
powers must be compatible with legislation and the common law. Otherwise,
ministers would be changing (or infringing) the law, which, as just explained,
they cannot do. A classic statement of the position was given by Lord Parker of
Waddington in The Zamora [1916] 2 AC 77, 90:
“The idea that the King in
Council, or indeed any branch of the Executive, has power to prescribe or alter
the law to be administered by Courts of law in this country is out of harmony
with the principles of our Constitution. It is true that, under a number of modern
statutes, various branches of the Executive have power to make rules having the
force of statutes, but all such rules derive their validity from the statute
which creates the power, and not from the executive body by which they are
made. No one would contend that the prerogative involves any power to prescribe
or alter the law administered in Courts of Common Law or Equity.”
46.
It is true that ministers can make laws by issuing regulations and the
like, often known as secondary or delegated legislation, but (save in limited
areas where a prerogative power survives domestically, as exemplified by the
cases mentioned in paras 52 and 53 below) they can do so only if authorised by
statute. So, if the regulations are not so authorised, they will be invalid,
even if they have been approved by resolutions of both Houses under the
provisions of the relevant enabling Act - for a recent example see R (The
Public Law Project) v Lord Chancellor [2016] AC 1531.
The Royal prerogative and Treaties
47.
The Royal prerogative encompasses the residue of powers which remain
vested in the Crown, and they are exercisable by ministers, provided that the
exercise is consistent with Parliamentary legislation. In Burmah Oil Co
(Burma Trading) Ltd v Lord Advocate [1965] AC 75, 101, Lord Reid explained
that the Royal prerogative is a source of power which is “only available for a
case not covered by statute”. Professor HWR Wade summarised the position in his
introduction to the first edition of what is now Wade on Administrative
Law (1961), p 13:
“[T]he residual prerogative is now
confined to such matters as summoning and dissolving Parliament, declaring war
and peace, regulating the armed forces in some respects, governing certain
colonial territories, making treaties (though as such they cannot affect the
rights of subjects), and conferring honours. The one drastic internal power of
an administrative kind is the power to intern enemy aliens in time of war.”
48.
Thus, consistently with Parliamentary sovereignty, a prerogative power
however well-established may be curtailed or abrogated by statute. Indeed, as
Professor Wade explained, most of the powers which made up the Royal
prerogative have been curtailed or abrogated in this way. The statutory
curtailment or abrogation may be by express words or, as has been more common,
by necessary implication. It is inherent in its residual nature that a
prerogative power will be displaced in a field which becomes occupied by a
corresponding power conferred or regulated by statute. This is what happened in
the two leading 20th century cases on the topic, Attorney General v De
Keyser’s Royal Hotel Ltd [1920] AC 508 and Fire Brigades Union cited
above. As Lord Parmoor explained in De Keyser at p 575, when discussing
the prerogative power to take a subject’s property in time of war:
“The constitutional principle is
that when the power of the Executive to interfere with the property or liberty
of subjects has been placed under Parliamentary control, and directly regulated
by statute, the Executive no longer derives its authority from the Royal
Prerogative of the Crown but from Parliament, and that in exercising such
authority the Executive is bound to observe the restrictions which Parliament
has imposed in favour of the subject.”
49.
In Burmah Oil cited above, at p 101, Lord Reid described
prerogative powers as a “relic of a past age”, but that description should not
be understood as implying that the Royal prerogative is either anomalous or
anachronistic. There are important areas of governmental activity which, today
as in the past, are essential to the effective operation of the state and which
are not covered, or at least not completely covered, by statute. Some of them,
such as the conduct of diplomacy and war, are by their very nature at least
normally best reserved to ministers just as much in modern times as in the
past, as indeed Lord Reid himself recognised in Burmah Oil at p 100.
50.
Consistently with paras 44 to 46, and the passage quoted from Professor
Wade in para 47 above, it is a fundamental principle of the UK constitution
that, unless primary legislation permits it, the Royal prerogative does not
enable ministers to change statute law or common law. As Lord Hoffmann observed
in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
(No 2) [2009] AC 453, para 44, “since the 17th century the prerogative has
not empowered the Crown to change English common or statute law”. This is, of
course, just as true in relation to Scottish, Welsh or Northern Irish law. Exercise
of ministers’ prerogative powers must therefore be consistent both with the
common law as laid down by the courts and with statutes as enacted by
Parliament.
51.
Further, ministers cannot frustrate the purpose of a statute or a
statutory provision, for example by emptying it of content or preventing its
effectual operation. Thus, ministers could not exercise prerogative powers at
the international level to revoke the designation of Laker Airways under an
aviation treaty as that would have rendered a licence granted under a statute
useless: Laker Airways Ltd v Department of Trade [1977] QB 643 - see
especially at pp 718-719 and 728 per Roskill LJ and Lawton LJ respectively. And
in Fire Brigades Union cited above, at pp 551-552, Lord Browne-Wilkinson
concluded that ministers could not exercise the prerogative power to set up a
scheme of compensation for criminal injuries in such a way as to make a
statutory scheme redundant, even though the statute in question was not yet in
force. And, as already mentioned in para 35 above, he also stated that it was
inappropriate for ministers to base their actions (or to invite the court to
make any decision) on the basis of an anticipated repeal of a statutory
provision as that would involve ministers (or the court) pre-empting
Parliament’s decision whether to enact that repeal.
52.
The fact that the exercise of prerogative powers cannot change the
domestic law does not mean that such an exercise is always devoid of domestic
legal consequences. There are two categories of case where exercise of the
prerogative can have such consequences. The first is where it is inherent in
the prerogative power that its exercise will affect the legal rights or duties
of others. Thus, the Crown has a prerogative power to decide on the terms of
service of its servants, and it is inherent in that power that the Crown can
alter those terms so as to remove rights, albeit that such a power is
susceptible to judicial review: Council of Civil Service Unions v Minister
for the Civil Service [1985] AC 374. The Crown also has a prerogative power
to destroy property in wartime in the interests of national defence (although
at common law compensation was payable: Burmah Oil cited above). While
the exercise of the prerogative power in such cases may affect individual
rights, the important point is that it does not change the law, because the law
has always authorised the exercise of the power.
53.
The second category comprises cases where the effect of an exercise of
prerogative powers is to change the facts to which the law applies. Thus, the
exercise of the prerogative to declare war will have significant legal
consequences: actions which were previously lawful may become treasonable (as
in Joyce v Director of Public Prosecutions [1946] AC 347), and some
people will become enemy aliens, whose property is liable to confiscation.
Likewise, in Post Office v Estuary Radio Ltd [1968] 2 QB 740 the Crown’s
exercise of its prerogative to extend UK territorial waters resulted in the
criminalisation of broadcasts from ships in the extended area, which had
previously been lawful. These are examples where the exercise of the
prerogative power alters the status of a person, thing or activity so that an
existing rule of law comes to apply to it. However, in such cases the exercise
has not created or changed the law, merely the extent of its application.
54.
The most significant area in which ministers exercise the Royal
prerogative is the conduct of the United Kingdom’s foreign affairs. This
includes diplomatic relations, the deployment of armed forces abroad, and,
particularly in point for present purposes, the making of treaties. There is
little case law on the power to terminate or withdraw from treaties, but, as a
matter of both logic and practical necessity, it must be part of the
treaty-making prerogative. As Lord Templeman put it in JH Rayner (Mincing
Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 476, “[t]he
Government may negotiate, conclude, construe, observe, breach, repudiate or
terminate a treaty”.
55.
Subject to any restrictions imposed by primary legislation, the general
rule is that the power to make or unmake treaties is exercisable without
legislative authority and that the exercise of that power is not reviewable by
the courts - see Civil Service Unions case cited above, at pp 397-398.
Lord Coleridge CJ said that the Queen acts “throughout the making of the treaty
and in relation to each and every of its stipulations in her sovereign
character, and by her own inherent authority” - Rustomjee v The Queen
(1876) 2 QBD 69, 74. This principle rests on the so-called dualist theory,
which is based on the proposition that international law and domestic law
operate in independent spheres. The prerogative power to make treaties depends
on two related propositions. The first is that treaties between sovereign
states have effect in international law and are not governed by the domestic
law of any state. As Lord Kingsdown expressed it in Secretary of State in
Council of India v Kamachee Boye Sahaba (1859) 13 Moo PCC 22, 75, treaties
are “governed by other laws than those which municipal courts administer”. The
second proposition is that, although they are binding on the United Kingdom in
international law, treaties are not part of UK law and give rise to no legal
rights or obligations in domestic law.
56.
It is only on the basis of these two propositions that the exercise of
the prerogative power to make and unmake treaties is consistent with the rule
that ministers cannot alter UK domestic law. Thus, in Higgs v Minister of
National Security [2000] 2 AC 228, 241, Lord Hoffmann pointed out that the
fact that treaties are not part of domestic law was the “corollary” of the
Crown’s treaty-making power. In JH Rayner cited above, at p 500, Lord
Oliver of Aylmerton put it thus:
“As a matter of the constitutional
law of the United Kingdom, the Royal Prerogative, whilst it embraces the making
of treaties, does not extend to altering the law or conferring rights upon
individuals or depriving individuals of rights which they enjoy in domestic law
without the intervention of Parliament. Treaties, as it is sometimes expressed,
are not self-executing. Quite simply, a treaty is not part of English law
unless and until it has been incorporated into the law by legislation. So far
as individuals are concerned, it is res inter alios acta [ie something done
between others], from which they cannot derive rights and by which they cannot
be deprived of rights or subjected to obligations; and it is outside the
purview of the court not only because it is made in the conduct of foreign
relations, which are a prerogative of the Crown, but also because, as a source
of rights and obligations, it is irrelevant.”
57.
It can thus fairly be said that the dualist system is a necessary
corollary of Parliamentary sovereignty, or, to put the point another way, it
exists to protect Parliament not ministers. Professor Campbell McLachlan in Foreign
Relations Law (2014), para 5.20, neatly summarises the position in the
following way:
“If treaties have no effect within
domestic law, Parliament’s legislative supremacy within its own polity is
secure. If the executive must always seek the sanction of Parliament in the
event that a proposed action on the international plane will require domestic
implementation, parliamentary sovereignty is reinforced at the very point at
which the legislative power is engaged.”
58.
While ministers have in principle an unfettered power to make treaties
which do not change domestic law, it had become fairly standard practice by the
late 19th century for treaties to be laid before both Houses of Parliament at
least 21 days before they were ratified, to enable Parliamentary objections to
be heard. In 1924, following an indication by the previous government that it
did not regard itself as bound by the practice, Arthur Ponsonby, the
Parliamentary Under-Secretary of State for Foreign Affairs, assured the House
of Commons that ministers would in future adhere to this practice, which became
known as the Ponsonby Convention. The convention was superseded and formalised
by section 20 of the Constitutional Reform and Governance Act 2010. However, by
virtue of section 23(1) of that Act, this section does not apply to new EU
Treaties, because they are governed by the more specific statutory controls
discussed in paras 28 and 29 above.
59.
With that background, we turn to analyse the effect of the 1972 Act and
the arguments as to whether, in the absence of prior authority from Parliament
in the form of a statute, the giving of Notice by ministers would be
ineffective under the United Kingdom’s constitutional requirements, as it would
otherwise impermissibly result in a change in domestic law.
The status and character of the 1972 Act
60.
Many statutes give effect to treaties by prescribing the content of
domestic law in the areas covered by them. The 1972 Act does this, but it does
considerably more as well. It authorises a dynamic process by which, without
further primary legislation (and, in some cases, even without any domestic
legislation), EU law not only becomes a source of UK law, but actually takes
precedence over all domestic sources of UK law, including statutes. This may
sound rather dry or technical to many people, but in constitutional terms the
effect of the 1972 Act was unprecedented. Indeed, it is fair to say that the
legal consequences of the United Kingdom’s accession to the EEC were not fully
appreciated by many lawyers until the Factortame litigation in the 1990s
- see the House of Lords decisions in R v Secretary of State for Transport,
Ex p Factortame Ltd (No 2) [1991] 1 AC 603 and (No 5) [2000] 1 AC 524. Of course, consistently with the principle of Parliamentary sovereignty,
this unprecedented state of affairs will only last so long as Parliament
wishes: the 1972 Act can be repealed like any other statute. For that reason,
we would not accept that the so-called fundamental rule of recognition (ie the
fundamental rule by reference to which all other rules are validated)
underlying UK laws has been varied by the 1972 Act or would be varied by its
repeal.
61.
In one sense, of course, it can be said that the 1972 Act is the source
of EU law, in that, without that Act, EU law would have no domestic status. But
in a more fundamental sense and, we consider, a more realistic sense, where EU
law applies in the United Kingdom, it is the EU institutions which are the
relevant source of that law. The legislative institutions of the EU can create
or abrogate rules of law which will then apply domestically, without the
specific sanction of any UK institution. It is true that the UK government and
UK-elected members of the European Parliament participate in the EU legislative
processes and can influence their outcome, but that does not diminish the
point. Further, in the many areas of EU competence which are subject to
majority decision, the approval of the United Kingdom is not required for its
legislation to take effect domestically. It is also true that EU law enjoys its
automatic and overriding effect only by virtue of the 1972 Act, and thus only
while it remains in force. That point simply reflects the fact that Parliament
was and remains sovereign: so, no new source of law could come into existence without
Parliamentary sanction - and without being susceptible to being abrogated by
Parliament. However, that in no way undermines our view that it is unrealistic
to deny that, so long as that Act remains in force, the EU Treaties, EU
legislation and the interpretations placed on these instruments by the Court of
Justice are direct sources of UK law.
62.
The 1972 Act did two things which are relevant to these appeals. First,
it provided that rights, duties and rules derived from EU law should apply in
the United Kingdom as part of its domestic law. Secondly, it provided for a new
constitutional process for making law in the United Kingdom. These things are
closely related, but they are legally and conceptually distinct. The content of
the rights, duties and rules introduced into our domestic law as a result of
the 1972 Act is exclusively a question of EU law. However, the constitutional
processes by which the law of the United Kingdom is made is exclusively a
question of domestic law.
63.
Under the terms of the 1972 Act, EU law may take effect as part of the
law of the United Kingdom in one of three ways. First, the EU Treaties
themselves are directly applicable by virtue of section 2(1). Some of the
provisions of those Treaties create rights (and duties) which are directly
applicable in the sense that they are enforceable in UK courts. Secondly, where
the effect of the EU Treaties is that EU legislation is directly applicable in
domestic law, section 2(1) provides that it is to have direct effect in the
United Kingdom without the need for further domestic legislation. This applies
to EU Regulations (which are directly applicable by virtue of article 288 of
the TFEU). Thirdly, section 2(2) authorises the implementation of EU law by delegated
legislation. This applies mainly to EU Directives, which are not, in general,
directly applicable but are required (again by article 288) to be transposed
into national law. While this is an international law obligation, failure of
the United Kingdom to comply with it is justiciable in domestic courts, and
some Directives may be enforced by individuals directly against national
governments in domestic courts. Further, any serious breach by the UK
Parliament, government or judiciary of any rule of EU law intended to confer
individual rights will entitle any individual sustaining damage as a direct
result to compensation from the UK government: Brasserie du Pęcheur SA v
Germany; R v Secretary of State for Transport (Ex p Factortame Ltd) (No 4) (Joined
Cases C-46/93 and C-48/93) [1996] QB 404 (provided that, where the breach
consists in a court decision, the breach is not only serious but also manifest:
Köbler v Austria (Case C-224/01) [2004] QB 848).
64.
Thus, EU law in EU Treaties and EU legislation will pass into UK law
through the medium of section 2(1) or the implementation provisions of section
2(2) of the 1972 Act, so long as the United Kingdom is party to the EU
Treaties. Similarly, so long as the United Kingdom is party to the EU Treaties,
UK courts are obliged (i) to interpret EU Treaties, Regulations and Directives
in accordance with decisions of the Court of Justice, (ii) to refer unclear
points of EU law to the Court of Justice, and (iii) to interpret all domestic
legislation, if at all possible, so as to comply with EU law (see Marleasing
v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135). And, so long as the United Kingdom is party to the EU Treaties, UK
citizens are able to recover damages from the UK government in cases where a
decision of one of the organs of the state based on a serious error of EU law
has caused them loss.
65.
In our view, then, although the 1972 Act gives effect to EU law, it is
not itself the originating source of that law. It is, as was said on behalf of
the Secretary of State echoing the illuminating analysis of Professor Finnis,
the “conduit pipe” by which EU law is introduced into UK domestic law. So long
as the 1972 Act remains in force, its effect is to constitute EU law an
independent and overriding source of domestic law.
66.
Section 18 of the 2011 Act, set out in para 30 above, was enacted in
order to make it clear that the primacy of EU law over domestic legislation did
not prevent it being repealed by domestic legislation. But that simply confirmed
the position as it had been since the beginning of 1973. The primacy of EU law
means that, unlike other rules of domestic law, EU law cannot be implicitly
displaced by the mere enactment of legislation which is inconsistent with it.
That is clear from the second part of section 2(4) of the 1972 Act and
Factortame Ltd (No 2) [1991] 1 AC 603. The issue was informatively
discussed by Laws LJ in Thoburn v Sunderland City Council [2003] QB 151,
paras 37-47.
67.
The 1972 Act accordingly has a constitutional character, as discussed by
Laws LJ in Thoburn cited above, paras 58-59, and by Lord Reed and Lords
Neuberger and Mance in in R (Buckinghamshire County Council) v Secretary of
State for Transport [2014] 1 WLR 324, paras 78 to 79 and 206 to 207
respectively. Following the coming into force of the 1972 Act, the normal rule
is that any domestic legislation must be consistent with EU law. In such cases,
EU law has primacy as a matter of domestic law, and legislation which is
inconsistent with EU law from time to time is to that extent ineffective in
law. However, legislation which alters the domestic constitutional status of EU
institutions or of EU law is not constrained by the need to be consistent with
EU law. In the case of such legislation, there is no question of EU law having
primacy, so that such legislation will have domestic effect even if it
infringes EU law (and that would be true whether or not the 1972 Act remained
in force). That is because of the principle of Parliamentary sovereignty which
is, as explained above, fundamental to the United Kingdom’s constitutional
arrangements, and EU law can only enjoy a status in domestic law which that
principle allows. It will therefore have that status only for as long as the
1972 Act continues to apply, and that, of course, can only be a matter for
Parliament.
68.
We should add that, for these reasons, we do not accept the suggestion
that, as a source of law, EU law can properly be compared with, delegated
legislation. The 1972 Act effectively operates as a partial transfer of law-making
powers, or an assignment of legislative competences, by Parliament to the EU
law-making institutions (so long as Parliament wills it), rather than a
statutory delegation of the power to make ancillary regulations - even under a
so-called Henry the Eighth clause, as explained in the Public Law Project
case, cited above, paras 25 and 26. The 1972 Act cannot be said to constitute
EU legislative institutions the delegates of Parliament: they make laws
independently of Parliament, and indeed they were doing so before the 1972 Act
was passed. If EU law had the same status in domestic law as delegated
legislation, the Factortame litigation referred to above would have had
a different outcome. A statutory provision which provides that legislative
documents and decisions made by EU institutions should be an independent and
pre-eminent source of UK law is thus quite different from a statutory provision
which delegates to ministers and other organs of the executive the right to
make regulations and the like. The exceptional nature of the effect of the 1972
Act is well illustrated by the passages quoted by Lord Reed in para 182 below
from the decisions of the Court of Justice in Van Gend en Loos (Case C-26/62)
[1963] ECR 1, 12 and Costa v ENEL (Case C-6/64) [1964] ECR 585, 593.
They demonstrate that rules which would, as Lord Reed says, normally be
incompatible with UK constitutional principles, became part of our
constitutional arrangements as a result of the 1972 Act and the 1972 Accession
Treaty for as long as the 1972 Act remains in force.
The Divisional Court’s analysis of the effect of the 1972
Act
69.
Although article 50 operates on the plane of international law, it is
common ground that, because the EU Treaties apply as part of UK law, our domestic
law will change as a result of the United Kingdom ceasing to be party to them,
and rights enjoyed by UK residents granted through EU law will be affected. The
Divisional Court concluded that, because ministers cannot claim prerogative
powers to take an action which would result in a change in domestic law, it was
not open to ministers to withdraw from the EU Treaties, and therefore to serve
Notice, without authorisation in a statute. In that connection, the Divisional
Court identified three categories of right:
(1)
Rights capable of replication in UK law;
(2)
Rights derived by UK citizens from EU law in other member states;
(3) Rights of
participation in EU institutions that could not be replicated in UK law.
70.
Many current EU rights fall within the first category. They include, for
instance, the rights of UK citizens to the benefit of employment protection
such as the Working Time Directive, to equal treatment and to the protection of
EU competition law, and the right of non-residents to the benefit of the “four
freedoms” (free movement of people, goods and capital, and freedom to provide
services). Some of these rights have already been embodied in UK law by
domestic legislation pursuant to section 2(2) of the 1972 Act, and they will
not cease to have effect upon the United Kingdom’s withdrawal from the European
Union (unless the domestic legislation giving effect to them is repealed in
accordance with the law), although the Court of Justice will no longer have any
binding role in relation to their scope or interpretation. Other rights,
arising under EU Regulations or directly under the EU Treaties, will cease to
have effect upon withdrawal (save in relation to rights and liabilities already
accrued), but many could be replicated in a new statute - eg the proposed Great
Repeal Bill. But, as the Divisional Court pointed out, the need for such
replication would only arise because withdrawal from the EU Treaties would have
abrogated domestic rights created by the 1972 Act of effect, and again the Court
of Justice would no longer have any binding role in relation to them.
71.
The second category may appear to be irrelevant for present purposes as
the rights within it arise from the incorporation of EU law into the law of
other member states, and not from UK legislation. However, some rights falling
within one category may be closely linked with rights falling within another
category. For example, the rights under Council Regulation (EC) No 2201/2003, concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial
matters and the matters of parental responsibility (known as “Brussels II
Revised”), would be undermined if a domestic judgment governing the
residence of a child could not be enforced outside the UK.
72.
The rights in the third category will cease when the United Kingdom is
no longer a member of the European Union, as they are by their very nature
dependent on continued membership. They include the right to stand for
selection or later election to the European Parliament, and the right to vote
in European elections, as well as the right to invite the Commission to take
regulatory action. However, they have the character of what Mr Eadie described
as “club membership rights”, and are of a different nature from the other more
“freestanding” rights in the first and second categories.
73.
Given that it is clear that some rights in the first category will be
lost on the United Kingdom withdrawing from the EU Treaties, it is unnecessary
to consider whether, for the purpose of their present arguments, the applicants
can rely on the loss of rights in the second and third categories. If they
cannot succeed in their argument based on loss of rights in the first category,
then invoking loss of rights in the other categories would not help them; and if
they can succeed on the basis of loss of rights in the first category, they
would not need to invoke loss of rights in the other categories.
Does the 1972 Act preclude the use of prerogative power to
withdraw?
74.
While accepting that some rights will be lost on withdrawal from the EU
Treaties, the Secretary of State’s case is that the loss of these rights in
such circumstances is provided for, and has therefore effectively been
sanctioned, by Parliament in the 1972 Act itself. In this connection, Mr Eadie
pointed out that the 1972 Act does not simply incorporate the EU Treaties into
UK law in the same way as, say, the Carriage of Goods by Sea Act 1971
incorporates the Hague Rules. By contrast, he said, section 2 of the 1972 Act
is “ambulatory”: in other words, it gives effect to whatever may from time to
time be the international obligations of the United Kingdom under or pursuant
to the EU Treaties.
75.
He pointed out that changes in EU law are brought into domestic law
through the medium of section 2 of the 1972 Act and that, once the United
Kingdom ceases to be bound by the EU Treaties, there will be no rights and
remedies etc to which section 2(1) can apply, and no EU obligations which
require delegated legislation under section 2(2), and that the possibility of
withdrawal from EU Treaties is therefore effectively provided for in the
wording of section 2. It is his case that, by providing that EU law rights,
remedies etc “from time to time provided for by or under the Treaties” were “to
be given effect or used in the United Kingdom”, section 2(1) accommodated the
possibility of ministers withdrawing from the Treaties without Parliamentary
authority. He also contended that it was self-evident that Parliament cannot
have intended that the variable content of EU law should continue to be part of
domestic law after the UK withdraws from the EU Treaties.
76.
We accept the proposition that the ambit of the rights and remedies etc
which are incorporated into domestic law through section 2 of the 1972 Act
varies with the United Kingdom’s obligations from time to time under the EU
Treaties. This proposition is reflected in the language of subsections (1) and
(2) of section 2, which are quoted in paras 18 and 19 above. However, this
proposition is also limited in nature. Thus, the provisions of new EU Treaties
are not automatically brought into domestic law through section 2: only once
they have been statutorily added to “the Treaties” and “the EU Treaties” in
section 1(2) can section 2 give effect to new EU Treaties. And section 2 can
only apply to those rights and remedies which are capable of being “given legal
effect or used” or “enjoyed” in the United Kingdom.
77.
We also accept that Parliament cannot have intended that section 2
should continue to import the variable content of EU law into domestic law, or
that the other consequences of the 1972 Act described in paras 62 to 64 above
should continue to apply, after the United Kingdom had ceased to be bound by
the EU Treaties. However, while acknowledging the force of Lord Reed’s powerful
judgment, we do not accept that it follows from this that the 1972 Act either
contemplates or accommodates the abrogation of EU law upon the United Kingdom’s
withdrawal from the EU Treaties by prerogative act without prior Parliamentary
authorisation. On the contrary: we consider that, by the 1972 Act, Parliament
endorsed and gave effect to the United Kingdom’s membership of what is now the
European Union under the EU Treaties in a way which is inconsistent with the
future exercise by ministers of any prerogative power to withdraw from such
Treaties.
78.
In short, the fact that EU law will no longer be part of UK domestic law
if the United Kingdom withdraws from the EU Treaties does not mean that
Parliament contemplated or intended that ministers could cause the United
Kingdom to withdraw from the EU Treaties without prior Parliamentary approval.
There is a vital difference between changes in domestic law resulting from
variations in the content of EU law arising from new EU legislation, and
changes in domestic law resulting from withdrawal by the United Kingdom from
the European Union. The former involves changes in EU law, which are then
brought into domestic law through section 2 of the 1972 Act. The latter
involves a unilateral action by the relevant constitutional bodies which
effects a fundamental change in the constitutional arrangements of the United
Kingdom.
79.
So far as the interpretation of subsections (1) and (2) of section 2 of
the 1972 Act are concerned, any right available under EU law to the United
Kingdom to withdraw from the EU Treaties does not, as Mr Eadie rightly
accepted, fall within the subsection, as it is not one which would be given
“legal effect or used in”, or which would be “enjoyed by the United Kingdom”.
Further, the fact that section 2(1) envisages EU law rights and procedures
applying “as in accordance with the Treaties” “from time to time” and “without
further enactment” takes matters no further. Subsection 2(1) and (2) are concerned
to ensure that the variable content of EU law as it stands from time to time,
is given effect in domestic law, and there was no practical alternative to such
an arrangement in a dualist system. However, it does not follow from this that
prerogative powers may be used to withdraw from the Treaties and so cut off the
source of EU law entirely.
80.
One of the most fundamental functions of the constitution of any state
is to identify the sources of its law. And, as explained in paras 61 to 66
above, the 1972 Act effectively constitutes EU law as an entirely new,
independent and overriding source of domestic law, and the Court of Justice as
a source of binding judicial decisions about its meaning. This proposition is
indeed inherent in the Secretary of State’s metaphor of the 1972 Act as a
conduit pipe by which EU law is brought into the domestic UK law. Upon the
United Kingdom’s withdrawal from the European Union, EU law will cease to be a
source of domestic law for the future (even if the Great Repeal Bill provides
that some legal rules derived from it should remain in force or continue to
apply to accrued rights and liabilities), decisions of the Court of Justice
will (again depending on the precise terms of the Great Repeal Bill) be of no
more than persuasive authority, and there will be no further references to that
court from UK courts. Even those legal rules derived from EU law and transposed
into UK law by domestic legislation will have a different status. They will no
longer be paramount, but will be open to domestic repeal or amendment in ways
that may be inconsistent with EU law.
81.
Accordingly, the main difficulty with the Secretary of State’s argument
is that it does not answer the objection based on the constitutional implications
of withdrawal from the EU. As we have said, withdrawal is fundamentally
different from variations in the content of EU law arising from further EU
Treaties or legislation. A complete withdrawal represents a change which is
different not just in degree but in kind from the abrogation of particular
rights, duties or rules derived from EU law. It will constitute as significant
a constitutional change as that which occurred when EU law was first
incorporated in domestic law by the 1972 Act. And, if Notice is given, this
change will occur irrespective of whether Parliament repeals the 1972 Act. It
would be inconsistent with long-standing and fundamental principle for such a
far-reaching change to the UK constitutional arrangements to be brought about
by ministerial decision or ministerial action alone. All the more so when the
source in question was brought into existence by Parliament through primary
legislation, which gave that source an overriding supremacy in the hierarchy of
domestic law sources.
82.
The point may be illustrated by reference to the formula which Lord Reed
uses to make the argument about the variable content of EU law. That formula is
“All such [members of a specified category] as [satisfy a specified condition]
shall be [dealt with in accordance with a specified requirement]”. In the
present case, the “specified condition” is a continuing obligation under the EU
Treaties, and it must be satisfied by EU laws, which are the relevant “members
of [the] specified category”, in order for the “specified requirement”, namely that
those EU laws are binding domestically, to apply. The membership of the
specified category has a variable content which is contingent on the decisions
of non-UK entities, and the contingency may change that content. That much may
well be accommodated by the 1972 Act. But the very formula is not itself
variable: it is a fixed rule of domestic law, enacted by Parliament. It is
nothing to the point that there was, for UK purposes, no content in the
specified category until the 1972 Accession Treaty was ratified (on the day
after the 1972 Act received the royal assent). As mentioned in para 77 above,
by the 1972 Act, Parliament endorsed and gave effect to the UK’s future
membership of the European Union, and this became a fixed domestic starting
point. The question is whether that domestic starting point, introduced by
Parliament, can be set aside, or could have been intended to be set aside, by a
decision of the UK executive without express Parliamentary authorisation. We
cannot accept that a major change to UK constitutional arrangements can be
achieved by ministers alone; it must be effected in the only way that the UK
constitution recognises, namely by Parliamentary legislation. This conclusion
appears to us to follow from the ordinary application of basic concepts of
constitutional law to the present issue.
83.
While the consequential loss of a source of law is a fundamental legal
change which justifies the conclusion that prerogative powers cannot be invoked
to withdraw from the EU Treaties, the Divisional Court was also right to hold
that changes in domestic rights acquired through that source as summarised in
para 70 above, represent another, albeit related, ground for justifying that
conclusion. Indeed, the consequences of withdrawal go further than affecting
rights acquired pursuant to section 2 of the 1972 Act, as explained in paras 62
to 64 above. More centrally, as explained in paras 76 to 79 above, section 2 of
that Act envisages domestic law, and therefore rights of UK citizens, changing
as EU law varies, but it does not envisage those rights changing as a result of
ministers unilaterally deciding that the United Kingdom should withdraw from
the EU Treaties.
84.
Mr Eadie also argued that exercise of prerogative powers can change
domestic law. While there are circumstances (as described in paras 52 and 53
above) where the exercise of prerogative powers can affect domestic legal
rights, they plainly do not apply in the present case. The rights which flow
through the conduit pipe of the 1972 Act are contingent on the possibility of
their being removed or changed in accordance with decisions taken by EU
institutions, as is recognised by the expression from “time to time” in section
2(1). However, as implied in para 79 above, far from helping the Secretary of State’s
case, the presence of those words in section 2 highlights their absence from
the definition of “Treaties” and “EU Treaties” in section 1(2). When one reads
the two subsections together, the clear implication is that the continued
existence of the conduit pipe, as opposed to the contents which flow through
it, can be changed only if Parliament changes the law.
85.
In the course of his attractively presented submissions, Mr Eadie sought
to meet these points with the argument that the 1972 Act (as amended from time
to time) effectively incorporates the EU Treaties, and that the applicants
cannot point to any provision in the Act which states that the prerogative
powers in relation to those treaties are to be abrogated. Given that there is
nothing in the 1972 Act which expressly or by necessary implication abrogated
ministers’ prerogative powers to withdraw from the Treaties to which it
applied, he contended that it followed that the prerogative to withdraw from
the EU Treaties was not precluded by the 1972 Act. In this connection, he
relied on dicta in De Keyser cited above (including Lord Parmoor’s
reference to “directly regulated by statute” in the passage quoted in para 48
above) which suggested that prerogative powers should not be treated as
abrogated unless a statute expressly, or by necessary implication, provided for
their abrogation. Mr Eadie also relied on R v Secretary of State for Foreign
and Commonwealth Affairs, Ex p Rees-Mogg [1994] QB 552, in which the Court
of Appeal held that ministers could ratify a protocol to the TEU without
Parliamentary approval. In the course of his reasons for rejecting an argument
based on the proposition that prerogative powers could not be used to alter the
law, Lloyd LJ at p 567H appears to have concluded that ministers’ prerogative
powers exist generally in relation to the EU Treaties, apparently on the basis
that a prerogative power can be fettered by statute only in express terms.
86.
However, as explained above, the EU Treaties not only concern the
international relations of the United Kingdom, they are a source of domestic
law, and they are a source of domestic legal rights many of which are
inextricably linked with domestic law from other sources. Accordingly, the
Royal prerogative to make and unmake treaties, which operates wholly on the
international plane, cannot be exercised in relation to the EU Treaties, at
least in the absence of domestic sanction in appropriate statutory form. It
follows that, rather than the Secretary of State being able to rely on the absence
in the 1972 Act of any exclusion of the prerogative power to withdraw from the
EU Treaties, the proper analysis is that, unless that Act positively created
such a power in relation to those Treaties, it does not exist. And, once one
rejects the contention that section 2 accommodates a ministerial power to
withdraw from the EU Treaties (as to which see paras 79 and 84 above), it is
plain that the 1972 Act did not create such a power of withdrawal, as the
Secretary of State properly accepts.
87.
We accept, of course, that it would have been open to Parliament to
provide expressly that the constitutional arrangements and the EU rights
introduced by the 1972 Act should themselves only prevail from time to time and
for so long as the UK government did not decide otherwise, and in particular
did not decide to withdraw from the EU Treaties. But we cannot accept that the
1972 Act did so provide. As Lord Hoffmann explained in R v Secretary of
State for the Home Department, Ex p Simms [2000] 2 AC 115, 131, “the
principle of legality means that Parliament must squarely confront what it is
doing and accept the political cost”, and so “[f]undamental rights cannot be
overridden by general … words” in a statute, “because there is too great a risk
that the full implications of their unqualified meaning may have passed unnoticed
in the democratic process”. Had the Bill which became the 1972 Act spelled out
that ministers would be free to withdraw the United Kingdom from the EU
Treaties, the implications of what Parliament was being asked to endorse would
have been clear, and the courts would have so decided. But we must take the
legislation as it is, and we cannot accept that, in Part I of the 1972 Act,
Parliament “squarely confront[ed]” the notion that it was clothing ministers with
the far-reaching and anomalous right to use a treaty-making power to remove an
important source of domestic law and important domestic rights.
88.
In our judgment, far from indicating that ministers had the power to
withdraw from the EU Treaties, the provisions of the 1972 Act, particularly
when considered in the light of the unusual nature of those Treaties and the
Act’s unusual legislative history, support the contrary view. As the Divisional
Court said, the long title of the 1972 Act stated that its purpose was to make
provision in connection with the “enlargement” of what is now the European
Union, which is not easy to reconcile with a prerogative power to achieve the
opposite. Similarly, the side-note to section 2, “General implementation of
Treaties”, points away from a prerogative to terminate any implementation. In
addition, there is the fact that the 1972 Act required ministers not to commit
the United Kingdom to any new arrangement, whether it increased or decreased
the potential volume and extent of EU law, without first being approved by
Parliament - by statute in the case of a new EU Treaty and by an approved Order
in Council in the case of a treaty ancillary to any existing EU Treaty. It
would scarcely be compatible with those provisions if, in reliance on
prerogative powers, ministers could unilaterally withdraw from the EU Treaties,
thereby reducing the volume and extent of EU law which takes effect
domestically to nil without the need for Parliamentary approval.
89.
For these reasons, we disagree with Lloyd LJ’s conclusion in Rees-Mogg
in so far as he held that ministers could exercise prerogative powers to
withdraw from the EU Treaties. It is only right to add that his ultimate
decision was nonetheless correct for the reason he gave on p 568, namely that
ratification of the particular protocol in that case would not in any
significant way alter domestic law.
90.
The EU Treaties as implemented pursuant to the 1972 Act were and are
unique in their legislative and constitutional implications. In 1972, for the
first time in the history of the United Kingdom, a dynamic, international
source of law was grafted onto, and above, the well-established existing
sources of domestic law: Parliament and the courts. And, as explained in paras
13-15 above, before (i) signing and (ii) ratifying the 1972 Accession Treaty,
ministers, acting internationally, waited for Parliament, acting domestically,
(i) to give clear, if not legally binding, approval in the form of resolutions,
and (ii) to enable the Treaty to be effective by passing the 1972 Act. Bearing
in mind this unique history and the constitutional principle of Parliamentary
sovereignty, it seems most improbable that those two parties had the intention
or expectation that ministers, constitutionally the junior partner in that
exercise, could subsequently remove the graft without formal appropriate
sanction from the constitutionally senior partner in that exercise, Parliament.
91.
The improbability of the Secretary of State’s case is reinforced by the
point that, if, as he contends, prerogative powers could be invoked in relation
to the EU Treaties despite the provisions of the 1972 Act, it would have been
open to ministers to take such a course on or at any time after 2 January 1973
without authorisation by Parliament. It would also follow that ministers could
have taken that course even if there had been no referendum or indeed, at least
in theory, even if any referendum had resulted in a vote to remain. Those are
implausible propositions.
92.
To meet this criticism, it was suggested that, if ministers had invoked
their prerogative powers to withdraw from the EU Treaties in such
circumstances, their decision may have been judicially reviewable. That is
rather a bold suggestion, given that it has always been considered that, because
they only operate on the international plane, prerogative treaty-making powers
are not subject to judicial review - see para 55 above. It was also suggested
that it should not cause surprise if ministers could exercise prerogative
powers to withdraw from the EU Treaties, as they would be accountable to
Parliament for their actions. This seems to us to be a potentially
controversial argument constitutionally. It would justify all sorts of powers
being accorded to the executive, on the basis that ministers could always be
called to account for their exercise of any power. There is a substantial
difference between (i) ministers having a freely exercisable power to do
something whose exercise may have to be subsequently explained to Parliament
and (ii) ministers having no power to do that thing unless it is first accorded
to them by Parliament. The major practical difference between the two
categories, in a case such as this where the exercise of the power is
irrevocable, is that the exercise of power in the first category pre-empts any
Parliamentary action. When the power relates to an action of such importance to
the UK constitution as withdrawing from the Treaties, it would clearly be
appropriate for the power to be in the second category. The fact that ministers
are free to issue a declaration of war without first obtaining the sanction of
Parliament does not assist the Secretary of State’s case. Such a declaration,
while plainly of fundamental significance in practice, does not change domestic
laws or domestic sources of law, although it will lead to new laws - provided
Parliament decides that it should.
93.
Thus, the continued existence of the new source of law created by the
1972 Act, and the continued existence of the rights and other legal incidents
which flow therefrom, cannot as a matter of UK law have depended on the fact
that to date ministers have refrained from having recourse to the Royal
prerogative to eliminate that source and those rights and other incidents.
Subsidiary arguments as to the effect of the 1972 Act
94.
The Secretary of State relied on the fact that it was inevitable that
Parliament would be formally involved in the process of withdrawal from the
European Union, in that primary legislation, not least the Great Repeal Bill
referred to in para 34 above, would be required to enable the United Kingdom to
complete its withdrawal in an orderly and coherent manner. That seems very
likely indeed, but it misses the point. If ministers give Notice without
Parliament having first authorised them to do so, the die will be cast before
Parliament has become formally involved. To adapt Lord Pannick’s metaphor, the
bullet will have left the gun before Parliament has accorded the necessary
leave for the trigger to be pulled. The very fact that Parliament will have to
pass legislation once the Notice is served and hits the target highlights the
point that the giving of the Notice will change domestic law: otherwise there
would be no need for new legislation.
95.
It was also argued on behalf of the Secretary of State that, when
ministers are participating in EU law-making processes and are therefore
involved in making EU law, and hence domestic law, they are thereby exercising
prerogative powers, and that the giving of Notice would be an equally
legitimate exercise of those powers. We readily accept, without formally
deciding, that ministerial activity in the EU law-making process is effected
under the Royal prerogative. However, it does not follow from this that
ministers should be entitled to exercise a prerogative power to leave the
European Union. When taking part in EU decision-making, UK ministers are
carrying out the very functions which were envisaged by Parliament when
enacting the 1972 Act. Withdrawing from the EU Treaties involves ministers
doing the opposite, namely, unilaterally dismantling the very system which they
set up in a co-ordinated way with Parliament, as explained in paras 13 to 15
above. Consistently with this, article 16 of TEU stipulates that “a
representative of each member state at ministerial level” can commit member
states by voting on the European Council, whereas article 50 provides that
withdrawal must be effected by a member state “in accordance with [its]
constitutional requirements”.
96.
It was further pointed out that unilateral actions by other member
states could remove EU law-based rights enjoyed by EU nationals (including UK
citizens) living in the United Kingdom - eg if another member state withdrew
from the European Union. We agree, but cannot accept that it has any relevance
to the present dispute, which concerns the domestic constitutional arrangements
which apply if the UK government wishes to withdraw from the EU Treaties. The
fact that it is inevitable that to the extent that they depend on a particular
foreign government, EU rights can be abrogated by the withdrawal from EU
Treaties by that foreign government gives no guidance as to what is required by
the United Kingdom’s constitutional arrangements before ministers can cause the
United Kingdom to withdraw from those Treaties.
97.
Mr Eadie identified two instances which, he contended, showed that there
were circumstances in which the UK government could withdraw from treaties
without prior Parliamentary sanction, even if such withdrawal changed domestic
law. The first was the United Kingdom’s withdrawal in 1972 from the European
Free Trade Agreement, EFTA. That is of no assistance to the Secretary of State.
For, in stark contrast with UK membership of the European Union as a result of
the 1972 Act, no directly effective rights had been created as a result of UK
membership of EFTA. Moreover, the decision to withdraw from EFTA was an
inevitable corollary of joining the EEC, and the formal notice withdrawing from
EFTA was only served after both Houses of Parliament had “approve[d]” the
“decision of principle to join the European Communities” as explained in para
13 above; it was thus an aspect of the exercise which the Prime Minister and
the Chancellor of the Duchy of Lancaster respectively described in the House of
Commons in October 1971 and January 1972.
98.
The second instance given by Mr Eadie was that of bilateral double
taxation treaties (“DTTs”), which were entered into with other states by the UK
government under section 788 of the Income and Corporation Taxes Act 1988
(“section 788”), now replaced by section 2 of the Taxation (International and
Other Provisions) Act 2010 (“TIOPA”). This point was hardly mentioned in the
oral argument before us, perhaps because discussions in some of the articles
referred to in para 11 above have shown that the DTTs are an unsatisfactory
analogy. By section 788 and now by TIOPA, Parliament provided in primary
legislation that arrangements agreed by ministers in a DTT at international
level will have effect in national law, but only if those arrangements are
specified in an Order in Council which is approved by the House of Commons.
Thus, unlike EU law which becomes part of UK law automatically as a result of
the 1972 Act, the arrangements under a DTT do not take effect automatically as
a result of section 788 or, now, TIOPA, but only through a specific Order in
Council which has to be approved by Parliament. The conduit pipe metaphor which
applies to the 1972 Act in relation to EU law is inapposite for section 788 and
TIOPA in relation to DTTs.
99.
Before concluding on the effect of the 1972 Act, it is worth mentioning
two points. First, eminent judges have taken it for granted that it is a matter
for Parliament whether the United Kingdom withdraws from the EU Treaties. In Blackburn
v Attorney General [1971] 1 WLR 1037, 1040, Lord Denning MR said that “[i]f
her Majesty’s Ministers sign this treaty and Parliament enacts provisions to
implement it” he did “not envisage that Parliament would afterwards go back on
it and try to withdraw from it”, but “if Parliament should do so” then the
courts would consider it. In Macarthys Ltd v Smith [1981] ICR 785, 789,
Lord Denning (albeit in a dissenting judgment) made “a constitutional point”,
and referred to the possibility of “our Parliament deliberately pass[ing] an
Act with the intention of repudiating the Treaty”. In Pham v Secretary of
State for the Home Department [2015] 1 WLR 1591, para 80, having stated
that “EU law [is] part of domestic law because Parliament has so willed”, Lord
Mance said that “[t]he question how far Parliament has so willed is thus
determined by construing the 1972 Act”. In R (Shindler) v Chancellor of the
Duchy of Lancaster [2016] 3 WLR 1196, para 58, Lord Dyson MR said that
“Parliament agreed to join the EU by exercising sovereign powers untrammelled
by EU law and I think it would expect to be able to leave the EU in the
exercise of the same untrammelled sovereign power”.
100.
Secondly, if, as the Secretary of State has argued, it is legitimate to
take account of the fact that Parliament will, of necessity, be involved in its
legislative capacity as a result of UK withdrawal from the EU Treaties, it
would militate in favour of, rather than against, the view that Parliament
should have to sanction giving Notice. An inevitable consequence of withdrawing
from the EU Treaties will be the need for a large amount of domestic
legislation. There is thus a good pragmatic argument that such a burden should
not be imposed on Parliament by exercise of prerogative powers and without
prior Parliamentary authorisation. We do not rest our decision on that point,
but it serves to emphasise the major constitutional change which withdrawal
from the European Union will involve, and therefore the constitutional
propriety of prior Parliamentary sanction for the process.
Conclusion on the effect of the 1972 Act
101.
Accordingly, we consider that, in light of the terms and effect of the
1972 Act, and subject to considering the effect of subsequent legislation and
events, the prerogative could not be invoked by ministers to justify giving
Notice: ministers require the authority of primary legislation before they can
take that course.
102.
We turn, then, to deal with the impact of legislation and events after
1972.
Legislation and events after 1972: from 1973 to 2014
103.
With one exception, the legislation and events between 1973 and 2014
were relied on in argument by the Secretary of State rather than by the
applicants. We will first discuss the Secretary of State’s points in this
connection and we will then turn to the applicants’ point.
104.
We start by addressing the fact that the EU Treaties contained no
provision entitling a member state to withdraw at the time of the 1972 Act, and
that such a provision, article 50, was introduced by the TFEU in 2008. Although
its invocation will have the inevitable consequence which Lord Pannick
described (as mentioned in para 36 above), article 50 operates only on the
international plane, and is not therefore brought into UK law through section 2
of the 1972 Act, as explained in para 79 above. Accordingly, the Secretary of
State can derive no domestic authority from the fact that the EU Treaties now
include provision for unilateral withdrawal. In any event, article 50 only
entitles a member state to withdraw from the EU Treaties “in accordance with
its own constitutional requirements”, which returns one to the issue in the
current proceedings.
105.
It was suggested that, by incorporating the TFEU, including its
introduction of article 50, into section 1(2) of the 1972 Act in 2008, it
cannot have been the intention of Parliament to “strip” ministers of their
ability to exercise their powers under article 50. That is not the issue.
Nobody doubts but that, under the TFEU and the TEU, ministers can give Notice
under article 50(2); the question we have to decide is whether they can do so
under prerogative powers or only with Parliamentary authority.
106.
So far as the 2008 Act and the 2011 Act are concerned, Mr Eadie rightly
did not go so far as to suggest that they conferred power on ministers to
withdraw if that power did not exist under the 1972 Act. More subtly, he
submitted that these later statutes implicitly, but clearly, recognised the
existence of the prerogative power to withdraw from the EU Treaties,
unconstrained by Parliamentary control.
107.
He pointed out that the two statutes specified in detail the prerogative
powers which Parliament intended to control in relation to the EU Treaties, and
that they did not include the power to withdraw from those treaties under
article 50(2). That omission was said to be particularly striking because, as
explained in para 29 above, the 2011 Act covered another aspect of article 50,
as it required legislation and a referendum before ministers could vote in
favour of a decision under article 50(3) to depart from the need for unanimity in
any decision to extend the two-year period in the event of another member state
seeking to withdraw from the EU Treaties. But it did not seek to control the
giving of notice by ministers under article 50(2), for all its fundamental and
irreversible consequences.
108.
We do not accept this argument. The fact that a statute says nothing
about a particular topic can rarely, if ever, justify inferring a fundamental
change in the law. As explained in Ex p Simms [2000] 2 AC 115, 131 cited
in para 87 above, “[f]undamental rights cannot be overridden by general …
words” in a statute, “because there is too great a risk that the full
implications of their unqualified meaning may have passed unnoticed in the
democratic process.” If this is true of general expressions in a statute it
must a fortiori be a principle which applies to omissions in a statute.
109.
Even if this principle admits of exceptions, they must be rare, and
there is no justification for the view that the absence of any reference to
article 50(2) in the 2008 and 2011 Acts is such an exception. Those statutes
were not attempting to codify the legislative restrictions on the use of the
prerogative in relation to the EU Treaties. The restrictions imposed by the two
statutes were largely prompted by the fact that the TFEU had both increased the
competences of the EU and included provisions which enabled EU institutions to
short-circuit some of the EU’s decision-making processes by replacing some of
the previous requirements for unanimity or consensus with majority voting or
involvement of the European Parliament. (It is fair to add that the
restrictions also applied to certain policy issues such as the inclusion of the
UK in the Schengen area and the UK’s adoption of the Euro, but that does not
undermine the point).
110.
As explained in paras 5 and 6 of the Explanatory Notes to the 2011 Act,
Part 1 of that Act was intended to impose specific restrictions, which in
summary terms were as follows. It required “a referendum [to] be held before
the UK could agree to an amendment” of TEU or TFEU, and “before the UK could
agree to certain decisions already provided for by TEU and TFEU … if these
would transfer power or competence from the UK to the EU”. Further, a
referendum and “[i]n addition, … an Act of Parliament would be required before
the UK could agree to a number of other specified decisions provided for in TEU
and TFEU”. Also, “certain other decisions would require a motion to be agreed …
in both Houses of Parliament before the UK could vote in favour of specified
decisions in [EU institutions]”.
111.
In other words, expressed in broad terms, Part 1 of the 2011 Act was
aimed at preventing ministers, without prior Parliamentary approval (plus, in
many cases prior approval in a referendum), from supporting any decisions made
by the European Union or its institutions which would extend EU competences and
the like, or which would dilute the effect of UK voting rights in the EU or any
EU institutions. It cannot be inferred from the fact that it was thought
necessary to deal with such issues that Parliament intended or assumed that
there were no legal limits to the prerogative powers that ministers might
exercise in other types of case. Part 1 of the 2011 Act was concerned with
decisions of EU institutions in which ministers played a part, not with
unilateral decisions of ministers. More broadly, the absence of any
Parliamentary controls on article 50(2) in the 2011 Act is entirely consistent
with the notion that Parliament assumed that ministers could not withdraw from
the EU Treaties without a statute authorising that course - and that if and
when Parliament had to consider the issue, it would decide whether and if so on
what terms, if any, to give such authorisation.
112.
If prerogative powers are curtailed by legislation, they may sometimes
be reinstated by the repeal of that legislation, depending on the construction
of the statutes in question. But if, as we have concluded, there never had been
a prerogative power to withdraw from the EU Treaties without statutory
authority, there is nothing to be curtailed or reinstated by later legislation.
The prerogative power claimed by the Secretary of State can only be created by
a subsequent statute if the express language of that statute unequivocally
shows that the power was intended to be created - see per Lord Hobhouse of
Woodborough in R (Morgan Grenfell & Co Ltd) v Special Commissioner of
Income Tax [2003] 1 AC 563, para 45. Mr Eadie was right to concede that,
however one approaches them, the 2008 and 2011 Acts did not show that.
113.
Mr Eadie further submitted that, rather than looking at the question
whether ministers could give Notice without statutory authorisation in
historical terms starting in 1972, it should be addressed by viewing the effect
of the present state of the legislation as a whole, without regard to what the
position might have been at some earlier stage. We do not agree. A statute
cannot normally be interpreted by reference to a later statute, save in so far
as the later statute intends to amend the earlier statute or the two statutes
are in pari materia, ie they are given a collective title, are required
to be construed as one, have identical short titles, or “deal with the same subject
matter on similar lines” - see Bennion on Statutory Interpretation (6th
ed, 2013) section 28(13). None of these tests can possibly be said to be
satisfied by the 2008 Act or the 2011 Act in relation to the 1972 Act, not
least because the later statutes are concerned with a different issue from the
1972 Act. In any event, even if the two later statutes were in pari materia with
the 1972 Act, for the reasons given in paras 110 to 112 above we do not
consider that they would together yield the interpretation for which the
Secretary of State contends.
114.
The one feature of the post-1972 history on which the applicants relied
was the effect of the 2002 Act. As explained in para 27 above, that Act gave
most people of the United Kingdom the right to vote in elections for MEPs, and
(albeit by inference) the right to stand for election as an MEP. On the face of
it, these are free-standing rights outside the ambit of the 1972 Act, in that
they are domestically granted in primary legislation passed by Parliament. The
Secretary of State cannot argue that these rights are in any sense ambulatory.
And they are rights which will inevitably be lost if the United Kingdom
withdraws from the EU Treaties and ceases being a member of the European Union.
115.
There is therefore some force in the argument that, even if formal
Parliamentary sanction to the giving of Notice was not needed on the grounds
discussed in paras 74 to 101 above, it would nonetheless be needed because
withdrawal from the EU Treaties would deprive UK citizens of the rights given
them by Parliament through the 2002 Act. However, there is also force in the
Secretary of State’s response that the rights given by the 2002 Act are simply
rights of institutional participation which are contingent on continued UK
membership of the European Union. The same sort of arguments might perhaps
arise in relation to statutory provisions such as section 4(2) of the
Communications Act 2003, which requires OFCOM, the UK telecommunications
regulator, to carry out its statutory functions “in accordance with the six
Community requirements”, which are set out in the ensuing subsections and give
effect to, and are mandated by, an EU Directive. Given our conclusion that, in
the light of the terms and effect of the 1972 Act, ministers cannot give Notice
without prior sanction from the UK Parliament, we can limit ourselves to saying
that we consider that the arguments based on the 2002 Act do nothing to
undermine and may be regarded as reinforcing that conclusion.
Legislation and events after 1972: the 2015 Act and the
referendum
116.
We turn to the 2015 Act and the ensuing referendum. The Attorney General
submitted that the traditional view as to the limits of prerogative power
should not apply to a ministerial decision authorised by a majority of the
members of the electorate who vote in a referendum provided for by Parliament.
In effect, he said that, even though it was Parliament which required the
referendum, the response to the referendum result should be a matter for
ministers, and that it should not be constrained by the legal limitations which
would have applied in the absence of the referendum.
117.
The referendum is a relatively new feature of UK constitutional
practice. There have been three national referendums: on EEC membership in
1975, on the Parliamentary election voting system in 2011 and on EU membership
in 2016. There have also been referendums about devolution in Scotland, Wales
and Northern Ireland and about independence in Scotland. In 2000, it was
considered worth having a legislative framework for the conduct of referendums
“held in pursuance of any provision made by or under an Act of Parliament”
- see Part VII of the Political Parties, Elections and Referendums Act.
118.
The effect of any particular referendum must depend
on the terms of the statute which authorises it. Further, legislation
authorising a referendum more often than not has provided for the consequences
on the result. Thus, the authorising statute may enact a change in the law
subject to the proviso that it is not to come into effect unless approved by a
majority in the referendum. The Scotland Act 1978 provided for devolution, but
stipulated that the minister should bring the Act into force if there was a
specified majority in a referendum, and if there was not he was required to lay
an order repealing the Act. The Parliamentary Voting System and Constituencies
Act 2011 had a provision requiring the alternative vote system to be adopted in
Parliamentary elections, but by section 8 stated that the minister should bring
this provision into force if it was approved in a referendum, but, if it was
not, he should repeal it. Section 1 of the Northern Ireland Act 1998 (“the NI
Act”) provided that if a referendum were to result in a majority for the
province to become part of a united Ireland, the Secretary of State should lay
appropriate proposals before Parliament.
119.
All these statutes stipulated what should happen in
response to the referendum result, and what changes in the law were to follow,
and how they were to be effected. The same is true of the provisions in Part 1
of the 2011 Act. By contrast, neither the 1975 Act nor the 2015 Act, which
authorised referendums about membership of the European Community or European
Union, made provision for any consequences of either possible outcome. They
provided only that the referendum should be held, and they did so in
substantially identical terms. The way in which the proposed referendum was
described in public statements by ministers, however, differed in the two
cases. The 1975 referendum was described by ministers as advisory, whereas the
2016 referendum was described as advisory by some ministers and as decisive by
others, but nothing hangs on that for present purposes. Whether or not they are
clear and consistent, such public observations, wherever they are made, are not
law: they are statements of political intention. Further, such statements are,
at least normally, made by ministers on behalf of the UK government, not on
behalf of Parliament.
120.
It was suggested on behalf of the Secretary of State that, having
referred the question whether to leave or remain to the electorate, Parliament
cannot have intended that, upon the electorate voting to leave, the same
question would be referred straight back to it. There are two problems with
this argument. The first is that it assumes what it seeks to prove, namely that
the referendum was intended by Parliament to have a legal effect as well as a
political effect. The second problem is that the notion that Parliament would
not envisage both a referendum and legislation being required to approve the
same step is falsified by sections 2, 3 and 6 of the 2011 Act, which, as the
Explanatory Notes (quoted in para 111 above) acknowledge, required just that -
albeit in the more elegant way of stipulating for legislation whose
effectiveness was conditional upon a concurring vote in a referendum.
121.
Where, as in this case, implementation of a
referendum result requires a change in the law of the land, and statute has not
provided for that change, the change in the law must be made in the only way in
which the UK constitution permits, namely through Parliamentary legislation.
122.
What form such legislation should take is entirely
a matter for Parliament. But, in the light of a point made in oral argument, it
is right to add that the fact that Parliament may decide to content itself with
a very brief statute is nothing to the point. There is no equivalence between
the constitutional importance of a statute, or any other document, and its
length or complexity. A notice under article 50(2) could no doubt be very short
indeed, but that would not undermine its momentous significance. The essential
point is that, if, as we consider, what would otherwise be a prerogative act
would result in a change in domestic law, the act can only lawfully be carried
out with the sanction of primary legislation enacted by the Queen in Parliament.
123.
This is why the Secretary of State rightly accepted
that the resolution of the House of Commons on 7 December 2016, calling on
ministers to give Notice by 31 March 2017, cannot affect the legal issues
before this court. A resolution of the House of Commons is an important
political act. No doubt, it makes it politically more likely that any necessary
legislation enabling ministers to give Notice will be enacted. But if, as we
have concluded, ministers cannot give Notice by the exercise of prerogative
powers, only legislation which is embodied in a statute will do. A resolution
of the House of Commons is not legislation.
124.
Thus, the referendum of 2016 did not change the law
in a way which would allow ministers to withdraw the United Kingdom from the European
Union without legislation. But that in no way means that it is devoid of
effect. It means that, unless and until acted on by Parliament, its force is
political rather than legal. It has already shown itself
to be of great political significance.
125.
It is instructive to see how the issue was
addressed in ministers’ response to the 12th Report of Session 2009-10 of the House
of Lords Select Committee on the Constitution (Referendums in the United
Kingdom). The Committee included the following recommendation in para 197:
“[B]ecause of the sovereignty of
Parliament, referendums cannot be legally binding in the UK, and are therefore
advisory. However, it would be difficult for Parliament to ignore a decisive
expression of public opinion.”
The UK government’s response as recorded in the
Committee’s Fourth Report of Session 2010-11 was
“The Government agrees with this
recommendation. Under the UK’s constitutional arrangements Parliament must be
responsible for deciding whether or not to take action in response to a
referendum result.”
The References from
Northern Ireland and the devolution questions
Introductory
126.
As mentioned above, four devolution questions have been referred to this
Court by the High Court of Justice in Northern Ireland on the direction of the
Attorney General for Northern Ireland, and one has been referred by the Court
of Appeal in Northern Ireland on the appeal from Maguire J. The five devolution
questions are:
(i)
Does any provision of the NI Act, read together with the Belfast
Agreement and the British-Irish Agreement, have the effect that primary
legislation is required before Notice can be given?
(ii)
If the answer is “yes”, is the consent of the Northern Ireland Assembly
required before the relevant legislation is enacted?
(iii) If the answer to question
(i) is “no”, does any provision of the NI Act read together with the Belfast
Agreement and the British-Irish Agreement operate as a restriction on the
exercise of the prerogative power to give Notice?
(iv) Does section 75 of
the NI Act prevent exercise of the power to give Notice in the absence of
compliance by the Northern Ireland Office with its obligations under that
section?
(v) Does the giving of
Notice without the consent of the people of Northern Ireland impede the
operation of section 1 of the NI Act?
127.
Following the hearing, our attention was drawn to the decision of the
Northern Irish Court of Appeal in Lee v McArthur and Ashers Baking Co Ltd
(No 2) handed down on 22 December 2016. That decision suggests that the
High Court may not have had jurisdiction to have made the reference in these
proceedings as sought by the Attorney General for Northern Ireland. Given that
the issues raised in that reference were fully debated, and that no party to
these proceedings has sought belatedly to rely on the decision of the Court of
Appeal, we think it appropriate to deal with the reference.
128.
The NI Act is the product of the Belfast Agreement and the British-Irish
Agreement, and is a very important step in the programme designed to achieve
reconciliation of the communities of Northern Ireland. It has established
institutions and arrangements which are intended to address the unique
political history of the province and the island of Ireland. Yet there is also
a relevant commonality in the devolution settlements in Northern Ireland,
Scotland and Wales (i) in the statutory constraint on the executive and
legislative competence of the devolved governments and legislatures that they
must not act in breach of EU law (“the EU constraints”); and (ii) in the
operation of the Sewel Convention. (The EU constraints are to be found in
sections 29(2)(d), 54 and 57(2) of the Scotland Act 1998; sections 108(6)(c)
and 80(8) of the Government of Wales Act 2006; and sections 6(2)(d) and 24(1)
of the NI Act).
Questions (i), (iii), (iv) and (v)
129.
Because we have concluded that primary legislation is required to
authorise the giving of Notice, the third question is superseded. The first
question is for a similar reason less significant than it otherwise might have
been but we address it briefly. When enacting the EU constraints in the NI Act
and the other devolution Acts, Parliament proceeded on the assumption that the
United Kingdom would be a member of the European Union. That assumption is
consistent with the view that Parliament would determine whether the United
Kingdom would remain a member of the European Union. But, in imposing the EU
constraints and empowering the devolved institutions to observe and implement
EU law, the devolution legislation did not go further and require the United
Kingdom to remain a member of the European Union. Within the United Kingdom,
relations with the European Union, like other matters of foreign affairs, are
reserved or excepted in the cases of Scotland and Northern Ireland, and are not
devolved in the case of Wales - see section 30(1) of, and paragraph 7(1) of
Schedule 5 to, the Scotland Act 1998; section 108(4) of, and Part 1 of Schedule
7 to, the Government of Wales Act 2006; and section 4(1) of, and paragraph 3 of
Schedule 2 to, the NI Act.
130.
Accordingly, the devolved legislatures do not have a parallel
legislative competence in relation to withdrawal from the European Union. The
EU constraints are a means by which the UK Parliament and government make sure
that the devolved democratic institutions do not place the United Kingdom in
breach of its EU law obligations. The removal of the EU constraints on
withdrawal from the EU Treaties will alter the competence of the devolved
institutions unless new legislative constraints are introduced. In the absence
of such new restraints, withdrawal from the EU will enhance the devolved
competence. We consider the effect of the alteration of competence in our
discussion of the Sewel Convention in paras 136 to 151 below.
131.
Mr Scoffield QC, who appeared for Mr Agnew, is unquestionably right,
however, to claim that the NI Act conferred rights on the citizens of Northern
Ireland. Sections 6(2)(d) and 24(1), in imposing the EU constraints, have
endowed the people of Northern Ireland with the right to challenge actions of the
Executive or the Assembly on the basis that they are in breach of EU law. A
recent example of the exercise of such a right is found in the case of Re
JR65’s Application [2016] NICA 20, where the lifetime ban on men who have
had sex with other men from giving blood in Northern Ireland was challenged as
being contrary to EU law.
132.
As already explained, it is normally impermissible for statutory rights
to be removed by the exercise of prerogative powers in the international
sphere. It would accordingly be incongruous if constraints imposed on the
legislative competence of the devolved administrations by specific statutory
provisions were to be removed, thereby enlarging that competence, other than by
statute. A related incongruity arises by virtue of the fact that observance and
implementation of EU obligations are a transferred matter and therefore the
responsibility of the devolved administration in Northern Ireland. The removal
of a responsibility imposed by Parliament by ministerial use of prerogative
powers might also be considered a constitutional anomaly. In light of our
conclusion that a statute is required to authorise the decision to withdraw
from the European Union, and therefore the giving of Notice, it is not
necessary to reach a definitive view on the first referred question. The EU
constraints and the provisions empowering the implementation of EU law are
certainly consistent with our interpretation of the 1972 Act but we refrain
from deciding whether they impose a discrete requirement for Parliamentary
legislation.
133.
Section 75(1) of the NI Act obliges a public authority in carrying out
its functions in relation to Northern Ireland to “have due regard to the need
to promote equality of opportunity”. By section 75(2), this duty includes an
obligation to have regard to the desirability of promoting good relations
between persons of different religious belief, political persuasion or radical
group. Section 75(3) defines “public authority” for the purpose of the section
and, unlike section 76(7), does not include within the definition a Minister of
the Crown. Thus, the Secretary of State does not fall within its ambit. Further,
in our view, and in agreement with the Attorney General for Northern Ireland,
the decision to withdraw from the European Union and to give Notice is not a
function carried out by the Secretary of State for Northern Ireland in relation
to Northern Ireland within the meaning of section 75. Because we have held that
there is no prerogative power to give Notice, the fourth question is superseded.
But in so far as the Secretary of State may have a role in the measures taken
by the UK Parliament to give Notice, we are satisfied that section 75 imposes
no obligation on him in that context.
134.
We also answer the fifth question in the negative. Section 1 of the NI
Act is headed “Status of Northern Ireland” and it provides:
“(1) It is hereby declared
that Northern Ireland in its entirety remains part of the United Kingdom and
shall not cease to be so without the consent of a majority of the people of
Northern Ireland voting in a poll held for the purposes of this section in
accordance with Schedule 1.
(2) But if the wish
expressed by a majority in such a poll is that Northern Ireland should cease to
be part of the United Kingdom and form part of a united Ireland, the Secretary
of State shall lay before Parliament such proposals to give effect to that wish
as may be agreed between Her Majesty’s Government in the United Kingdom and the
Government of Ireland.”
135.
In our view, this important provision, which arose out of the Belfast
Agreement, gave the people of Northern Ireland the right to determine whether
to remain part of the United Kingdom or to become part of a united Ireland. It
neither regulated any other change in the constitutional status of Northern
Ireland nor required the consent of a majority of the people of Northern
Ireland to the withdrawal of the United Kingdom from the European Union. Contrary
to the submission of Mr Lavery QC for Mr McCord, this section cannot support
any legitimate expectation to that effect.
The Sewel Convention and question (ii)
136.
That leaves the second question, which raises in substance the application
of the Sewel Convention. The convention was adopted as a means of establishing
cooperative relationships between the UK Parliament and the devolved
institutions, where there were overlapping legislative competences. In each of
the devolution settlements the UK Parliament has preserved its right to
legislate on matters which are within the competence of the devolved legislature.
Section 5 of the NI Act empowers the Northern Ireland Assembly to make laws,
but subsection (6) states that “[t]his section does not affect the power of the
Parliament of the United Kingdom to make laws for Northern Ireland”. Section
28(7) of the Scotland Act 1998 provides that the section empowering the
Scottish Parliament to make laws: “does not affect the power of the Parliament
of the United Kingdom to make laws for Scotland”. Substantially identical
provision is made for Wales in section 107(5) of the Government of Wales Act
2006.
137.
The practical benefits of achieving harmony between legislatures in
areas of competing competence, of avoiding duplication of effort, of enabling
the UK Parliament to make UK-wide legislation where appropriate, such as
establishing a single UK implementing body, and of avoiding any risk of legal
challenge to the vires of the devolved legislatures were recognised from an
early date in the devolution process. The convention takes its name from Lord
Sewel, the Minister of State in the Scotland Office in the House of Lords who
was responsible for the progress of the Scotland Bill in 1998. In a debate in
the House of Lords on the clause which is now section 28 of the Scotland Act
1998, he stated in July 1998 that, while the devolution of legislative
competence did not affect the ability of the UK Parliament to legislate for
Scotland, “we would expect a convention to be established that Westminster
would not normally legislate with regard to devolved matters in Scotland without
the consent of the Scottish Parliament”. That expectation has been fulfilled.
138.
The convention was embodied in a Memorandum of Understanding between the
UK government and the devolved governments originally in December 2001 (Cm
5240). Para 14 of the current Memorandum of Understanding, which was published
in October 2013, states:
“The UK Government will proceed in
accordance with the convention that the UK Parliament would not normally
legislate with regard to devolved matters except with the agreement of the
devolved legislature. The devolved administrations will be responsible for
seeking such agreement as may be required for this purpose on an approach from
the UK Government.”
139.
Thus, the UK government undertook not to seek or support relevant
legislation in the UK Parliament without the prior consent of the devolved
legislature. That consent is given by a legislative consent motion which the
devolved government introduces into the legislature. Para 2 of the Memorandum
of Understanding stated that it was a statement of political intent and that it
did not create legal obligations.
140.
Over time, devolved legislatures have passed legislative consent motions
not only when the UK Parliament has legislated on matters which fall within the
legislative competence of a devolved legislature, but also when the UK
Parliament has enacted provisions that directly alter the legislative
competence of a devolved legislature or amend the executive competence of
devolved administrations. Thus, as the Lord Advocate showed in a helpful
schedule, legislative consent motions were passed by the Scottish Parliament
before the enactment of both the Scotland Act 2012 and the Scotland Act 2016. Similarly,
the Welsh Assembly passed a legislative consent motion in relation to the Wales
Act 2014, and in November 2016 the Welsh government laid a legislative consent
motion before the Assembly in relation to the current Wales Bill 2016. But
legislation which implements changes to the competences of EU institutions and
thereby affects devolved competences, such as the 2008 Act which incorporated
the Treaty of Lisbon amending the TEU and the TFEU into section 1(2) of the
1972 Act, has not been the subject of legislative consent motions in any
devolved legislature.
141.
Before addressing the more recent legislative recognition of the
convention, it is necessary to consider the role of the courts in relation to
constitutional conventions. It is well established that the courts of law
cannot enforce a political convention. In Re Resolution to Amend the Constitution
[1981] 1 SCR 753, the Supreme Court of Canada addressed the nature of political
conventions. In the majority judgment the Chief Justice (Laskin) and Dickson,
Beetz, Estey, McIntyre, Chouinard and Lamer JJ stated at pp 774 to 775:
“The very nature of a convention,
as political in inception and as depending on a consistent course of political
recognition by those for whose benefit and to whose detriment (if any) the
convention developed over a considerable period of time is inconsistent with its
legal enforcement.”
142.
In a dissenting judgment on one of the questions before the court, the
Chief Justice and Estey and MacIntyre JJ developed their consideration of
conventions at p 853:
“[A] fundamental difference
between the legal, that is the statutory and common law rules of the
constitution, and the conventional rules is that, while a breach of the legal
rules, whether of statutory or common law nature, has a legal consequence in
that it will be restrained by the courts, no such sanction exists for breach or
non-observance of the conventional rules. The observance of constitutional
conventions depends upon the acceptance of the obligation of conformance by the
actors deemed to be bound thereby. When this consideration is insufficient to
compel observance no court may enforce the convention by legal action. The
sanction for non-observance of a convention is political in that disregard of a
convention may lead to political defeat, to loss of office, or to other
political consequences, but will not engage the attention of the courts which
are limited to matters of law alone. Courts, however, may recognise the
existence of conventions …”
143.
Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ made the same
point at pp 882 to 883:
“It is because the sanctions of
convention rest with institutions of government other than courts … or with
public opinion and ultimately, with the electorate, that it is generally said that
they are political.”
144.
Attempts to enforce political conventions in the courts have failed.
Thus in Madzimbamuto v Lardner-Burke [1969] 1 AC 645, the Judicial
Committee of the Privy Council had to consider a submission that legal effect
should be given to the convention which applied at that time that the UK
Parliament would not legislate without the consent of the government of
Southern Rhodesia on matters within the competence of the Legislative Assembly.
In its judgment delivered by Lord Reid the Board stated at p 723 that:
“That is a very important
convention but it had no legal effect in limiting the legal power of
Parliament. It is often said that it would be unconstitutional for the UK
Parliament to do certain things, meaning that the moral, political and other
reasons against doing them are so strong that most people would regard it as
highly improper if Parliament did these things. But that does not mean that it
is beyond the power of Parliament to do such things. If Parliament chose to do
any of them the courts could not hold the Act of Parliament invalid.”
More recently, the political nature of the Sewel
Convention was recognised by Lord Reed in a decision of the Inner House of the
Court of Session, Imperial Tobacco v Lord Advocate 2012 SC 297, para 71.
145.
While the UK government and the devolved executives have agreed the
mechanisms for implementing the convention in the Memorandum of Understanding,
the convention operates as a political restriction on the activity of the UK
Parliament. Article 9 of the Bill of Rights, which provides that “Proceedings
in Parliament ought not to be impeached or questioned in any Court or Place out
of Parliament”, provides a further reason why the courts cannot adjudicate on
the operation of this convention.
146.
Judges therefore are neither the parents nor the guardians of political
conventions; they are merely observers. As such, they can recognise the
operation of a political convention in the context of deciding a legal question
(as in the Crossman diaries case - Attorney General v Jonathan Cape Ltd
[1976] 1 QB 752), but they cannot give legal rulings on its operation or scope,
because those matters are determined within the political world. As Professor
Colin Munro has stated, “the validity of conventions cannot be the subject of
proceedings in a court of law” - (1975) 91 LQR 218, 228.
147.
The evolving nature of devolution has resulted in the Sewel Convention
also receiving statutory recognition through section 2 of the Scotland Act
2016, which inserted sub-section (8) into section 28 of the Scotland Act 1998
(which empowers the Scottish Parliament to make laws). Thus subsections (7) and
(8) now state:
“(7) This section does not
affect the power of the Parliament of the United Kingdom to make laws for
Scotland.
(8) But it is recognised
that the Parliament of the United Kingdom will not normally legislate with
regard to devolved matters without the consent of the Scottish Parliament.”
A substantially identical provision (clause 2) is
proposed in the Wales Bill 2016-2017, which is currently before the UK
Parliament.
148.
As the Advocate General submitted, by such provisions, the UK Parliament
is not seeking to convert the Sewel Convention into a rule which can be
interpreted, let alone enforced, by the courts; rather, it is recognising the
convention for what it is, namely a political convention, and is effectively
declaring that it is a permanent feature of the relevant devolution settlement.
That follows from the nature of the content, and is acknowledged by the words
(“it is recognised” and “will not normally”), of the relevant subsection. We would
have expected UK Parliament to have used other words if it were seeking to
convert a convention into a legal rule justiciable by the courts.
149.
In the Scotland Act 2016, the recognition of the Sewel Convention occurs
alongside the provision in section 1 of that Act. That section, by inserting
section 63A into the Scotland Act 1998, makes the Scottish Parliament and the
Scottish government a permanent part of the United Kingdom’s constitutional
arrangements, signifies the commitment of the UK Parliament and government to
those devolved institutions, and declares that those institutions are not to be
abolished except on the basis of a decision of the people of Scotland voting in
a referendum. This context supports our view that the purpose of the legislative
recognition of the convention was to entrench it as a convention.
150.
The Lord Advocate and the Counsel General for Wales were correct to
acknowledge that the Scottish Parliament and the Welsh Assembly did not have a
legal veto on the United Kingdom’s withdrawal from the European Union. Nor in
our view has the Northern Ireland Assembly. Therefore, our answer to the second
question in para 126 above is that the consent of the Northern Ireland Assembly
is not a legal requirement before the relevant Act of the UK Parliament is
passed.
151.
In reaching this conclusion we do not underestimate the importance of
constitutional conventions, some of which play a fundamental role in the operation
of our constitution. The Sewel Convention has an important role in facilitating
harmonious relationships between the UK Parliament and the devolved
legislatures. But the policing of its scope and the manner of its operation
does not lie within the constitutional remit of the judiciary, which is to
protect the rule of law.
Conclusion
152.
Accordingly, (i) we dismiss the Secretary of State’s appeal against the
decision of the English and Welsh Divisional Court, (ii) we invite the parties
to the reference from the Northern Irish Court of Appeal to agree or, failing
agreement, to make written submissions as to the order to be made on the appeal
from that Court, and (iii) we answer the second and fifth questions referred by
the courts of Northern Ireland as indicated respectively in paras 150 and 134
above, and we do not answer the first, third and fourth questions as they have
been superseded.
LORD REED: (dissenting)
Introduction
153.
Article 50 of the Treaty of European Union (“TEU”) provides:
“1. Any member state may
decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A member state which
decides to withdraw shall notify the European Council of its intention. In the
light of the guidelines provided by the European Council, the Union shall
negotiate and conclude an agreement with that state, setting out the
arrangements for its withdrawal, taking account of the framework for its future
relationship with the Union …
3. The Treaties shall
cease to apply to the state in question from the date of entry into force of
the withdrawal agreement or, failing that, two years after the notification
referred to in paragraph 2, unless the European Council, in agreement with the
member state concerned, unanimously decides to extend this period …”
154.
The cases before the court arise from disputes as to the “constitutional
requirements” which govern a decision by the United Kingdom to withdraw from
the European Union under article 50(1): a decision which must be taken before
notification can be given under article 50(2). In the case brought by Mrs
Miller and Mr Dos Santos (whom I shall refer to as the Miller claimants), the
Miller claimants maintain that the Crown cannot lawfully give notification
under article 50(2) unless an Act of Parliament authorises it to do so. The
Secretary of State for Exiting the European Union, on the other hand, maintains
that the decision is one which can lawfully be taken by the Crown in the
exercise of prerogative powers. The Divisional Court decided the case in favour
of the Miller claimants, and the case now comes before this court as an appeal against
that decision.
155.
A number of interested parties and interveners have taken part in the
Miller appeal. They include the Lord Advocate and the Counsel General for
Wales, who as well as presenting arguments in support of those advanced by the
Miller claimants, have also argued that, in the event that an Act of Parliament
is required, the consent of the Scottish Parliament and the National Assembly
for Wales is also required, in accordance with a convention known as the Sewel
Convention.
156.
Two other cases are also before the court. In the first, an application
for leave to apply for judicial review brought by Mr Agnew and others, a number
of devolution issues have been referred to this court by the High Court of
Northern Ireland. Put shortly, the court is asked to decide whether provisions
of the Northern Ireland Act 1998 (“the Northern Ireland Act”) have the effect
that an Act of Parliament is required before notification is given under
article 50(2); if so, whether the consent of the Northern Ireland Assembly is
required before such an Act of Parliament is enacted, in accordance with the
Sewel Convention; and, in any event, whether the Northern Ireland Act prevents
or constrains the exercise of the power to give notice.
157.
In the second case, an application for leave to apply for judicial
review brought by Mr McCord, another devolution issue has been referred to this
court by the Court of Appeal of Northern Ireland. The court is asked to decide
whether the giving of notification under article 50(2) in the exercise of
prerogative powers, without the consent of the people of Northern Ireland,
would impede the operation of section 1 of the Northern Ireland Act, which
provides that Northern Ireland shall not cease to be part of the United Kingdom
without the consent of a majority of the people of Northern Ireland.
158.
I shall begin by considering the Miller appeal.
The argument of the Secretary of State in the Miller
appeal
159.
Each side of the argument in the Miller appeal is based on a principle
of the British constitution. Counsel on each side cited a library’s worth of
authority, but I need mention only a few of the most important cases, as the
essence of the relevant principles is clear and well-known. The Secretary of
State relies on the principle that, as a matter of law, the conduct of the UK’s
foreign relations falls within the prerogative power of the Crown, advised by
its Ministers. This prerogative power includes the power to negotiate
international treaties, to amend them, and to withdraw from them. The exercise
of that treaty-making power is not justiciable by the courts, unless statute
has made it so. As Lord Oliver of Aylmerton said in the Tin Council case
(JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 499:
“On the domestic plane, the power of the Crown to
conclude treaties with other sovereign states is an exercise of the Royal
Prerogative, the validity of which cannot be challenged in municipal law: see Blackburn
v Attorney General [1971] 1 WLR 1037. The Sovereign acts ‘throughout the
making of the treaty and in relation to each and every of its stipulations in
her sovereign character, and by her own inherent authority; and, as in making
the treaty, so in performing the treaty, she is beyond the control of municipal
law, and her acts are not to be examined in her own courts:’ Rustomjee v The
Queen (1876) 2 QBD 69, 74, per Lord Coleridge CJ.”
The case of Blackburn v Attorney General, to which
Lord Oliver referred, concerned the UK’s entry into the European Communities,
as the EU was then known. The action was an attempt to prevent the Crown from
acceding to the Treaty of Rome. Lord Denning MR stated:
“The treaty-making power of this
country rests not in the courts, but in the Crown; that is, Her Majesty acting
upon the advice of her Ministers. When her Ministers negotiate and sign a
treaty, even a treaty of such paramount importance as this proposed one, they
act on behalf of the country as a whole. They exercise the prerogative of the
Crown. Their action in so doing cannot be challenged or questioned in these
courts.” (p 1040)
160.
The compelling practical reasons for recognising this prerogative power
to manage international relations were identified by Blackstone:
“This is wisely placed in a single
hand by the British constitution, for the sake of unanimity, strength, and
despatch. Were it placed in many hands, it would be subject to many wills: many wills, if
disunited and drawing different ways, create weakness in a government; and to
unite those several wills, and reduce them to one, is a work of more time and
delay than the exigencies of state will afford.” (Commentaries on the Laws
of England (1765-1769), Book I, Chapter 7, “Of the King’s
Prerogative”)
The value of unanimity, strength and dispatch in the
conduct of foreign affairs are as evident in the 21st century as they were in
the 18th.
161.
Confiding foreign affairs to the Crown, in the exercise of the
prerogative, does not, however, secure their effective conduct at the expense
of democratic accountability. Ministers of the Crown are politically
accountable to Parliament for the manner in which this prerogative power is
exercised, and it is therefore open to Parliament to require its exercise to be
debated and even to be authorised by a resolution or legislation: as it has
done, for example, in relation to the ratification of certain treaties under
the European Union Amendment Act 2008, the Constitutional Reform and Governance
Act 2010 and the European Union Act 2011. The Crown can, in addition, seek
Parliamentary approval before exercising the prerogative power if it so
chooses. There is however no legal requirement for the Crown to seek
Parliamentary authorisation for the exercise of the power, except to the extent
that Parliament has so provided by statute: that follows from the general principle
set out in Blackburn v Attorney General and the Tin Council case.
Since there is no statute which requires the decision under article 50(1) to be
taken by Parliament, it follows that it can lawfully be taken by the Crown, in
the exercise of the prerogative. There is therefore no legal requirement for an
Act of Parliament to authorise the giving of notification under article 50(2).
So runs the Secretary of State’s argument.
162.
In support of this argument, the Secretary of State points out that
there has been considerable Parliamentary scrutiny of Ministers’ conduct and
their plans in relation to article 50. That scrutiny has included inquiries by
the House of Commons Select Committee on Exiting the EU and by the House of
Lords European Union Committee, as well as Parliamentary questions and debates.
The latter have included a debate in the House of Commons on 7 December 2016,
following which the following motion was agreed:
“That this House
recognises that leaving the EU is the defining issue facing the UK; notes the
resolution on parliamentary scrutiny of the UK leaving the EU agreed by the
House on 12 October 2016; recognises that it is Parliament’s responsibility to
properly scrutinise the Government while respecting the decision of the British
people to leave the European Union; confirms that there should be no disclosure
of material that could be reasonably judged to damage the UK in any
negotiations to depart from the European Union after article 50 has been
triggered; and calls on the Prime Minister to commit to publishing the
Government’s plan for leaving the EU before article 50 is invoked, consistently
with the principles agreed without division by this House on 12 October;
recognises that this House should respect the wishes of the United Kingdom as
expressed in the referendum on 23 June; and further calls on the Government to
invoke article 50 by 31 March 2017.”
The Secretary of State submits that it is for Parliament,
not the courts, to determine the nature and extent of its involvement.
163.
The Secretary of State also emphasises, in response to the argument of
the Miller claimants, that the giving of notification under article 50(2) does
not in itself alter any laws in force in the UK: it merely initiates a process
of negotiation. If, at the end of those negotiations, a withdrawal agreement is
reached, the procedures for Parliamentary approval laid down in the
Constitutional Reform and Governance Act 2010 are likely to apply. Parliament
will in any event be invited to legislate before the EU treaties cease to apply
to the UK, so as to address the issues then arising in relation to rights and
obligations under EU law which are currently given effect in the UK through the
European Communities Act 1972 as amended (“the 1972 Act”).
The argument of the Miller claimants
164.
The Miller claimants, on the other hand, rely on decided cases concerned
with the use of prerogative powers in other situations. They argue that those
cases establish the existence of legal constraints on the exercise of those
powers, and that those constraints are applicable in the admittedly different
situation with which we are now concerned. They argue that the effect of those
constraints is that Ministers cannot lawfully give notification under article
50(2) unless an Act of Parliament authorises them to do so.
165.
The starting point of this argument is the Case of Proclamations (1611) 12 Co Rep 74, which concerned the question whether James I could, by
proclamation, prohibit the construction of new buildings in and around London,
and prohibit the manufacture of starch from wheat. Coke CJ stated that “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” (p 75). Those three
categories were exhaustive of English law: “the law of England is divided into
three parts, common law, statute law, and custom; but the King’s proclamation
is none of them” (ibid). It followed that “the King cannot create any offence
by his prohibition or proclamation, which was not an offence before, for that
was to change the law” (ibid).
166.
The same approach can be seen in more recent cases. For example, in The
Zamora [1916] 2 AC 77 an issue arose as to whether the courts were bound,
by an Order in Council made under prerogative powers, to decide that a neutral
ship found during wartime to have a contraband cargo on board, while ostensibly
bound for a neutral port, was lawful prize: an issue which, under established
legal principles, depended on whether the ship or its cargo was in reality destined
for the enemy. Lord Parker of Waddington stated:
“The idea that the King in
Council, or indeed any branch of the Executive, has power to prescribe or alter
the law to be administered by Courts of law in this country is out of harmony
with the principles of our Constitution ... No one would contend that the
prerogative involves any power to prescribe or alter the law administered in
Courts of Common Law or Equity.” (p 90)
167.
These cases were not concerned with the prerogative power to conduct
foreign relations. It is however consistent with those cases that, although the
Crown can undoubtedly enter into treaties in the exercise of prerogative
powers, it cannot, by doing so, alter domestic law. That is known as the
dualist approach to international law, in distinction to the monist approach
adopted by many other countries, under which treaties automatically take effect
in the domestic legal system. In support of the principle that treaties cannot
alter domestic law, the Miller claimants rely on the explanations of the
relationship between international and domestic law given by Lord Templeman and
Lord Oliver in the Tin Council case. The case concerned the question
whether a Minister of the Crown was liable under English law for the debts of
an international organisation which had been established by a treaty to which
the UK was party. Rejecting the contention that the Minister was liable, Lord
Templeman said:
“A treaty is a contract between
the governments of two or more sovereign states. International law regulates
the relations between sovereign states and determines the validity, the
interpretation and the enforcement of treaties. A treaty to which Her Majesty’s
Government is a party does not alter the laws of the United Kingdom. A treaty
may be incorporated into and alter the laws of the United Kingdom by means of
legislation. Except to the extent that a treaty becomes incorporated into the
laws of the United Kingdom by statute, the courts of the United Kingdom have no
power to enforce treaty rights and obligations at the behest of a sovereign government
or at the behest of a private individual.” (pp 476-477)
Lord Oliver said much the same:
“... as a matter of the
constitutional law of the United Kingdom, the Royal Prerogative, whilst it
embraces the making of treaties, does not extend to altering the law or
conferring rights upon individuals or depriving individuals of rights which
they enjoy in domestic law without the intervention of Parliament. Treaties, as
it is sometimes expressed, are not self-executing. Quite simply, a treaty is
not part of English law unless and until it has been incorporated into the law
by legislation. So far as individuals are concerned, it is res inter alios acta
from which they cannot derive rights and by which they cannot be deprived of
rights or subjected to obligations; and it is outside the purview of the court
not only because it is made in the conduct of foreign relations, which are a
prerogative of the Crown, but also because, as a source of rights and
obligations, it is irrelevant.” (p 500)
Similar observations were made by Lord Hoffmann in the
Privy Council case of Higgs v Minister of National Security [2000] 2 AC 228, 241, concerned with the impact of the American Convention on Human Rights
on the domestic law of the Bahamas, where he stated that “treaties cannot alter
the law of the land”.
168.
The principle that the Crown cannot alter the common law or statute by
an exercise of the prerogative was developed in the case of Attorney General
v De Keyser’s Royal Hotel Ltd [1920] AC 508, which concerned the
requisitioning of a hotel during the First World War for use as the
headquarters of the Royal Flying Corps. After the war, a dispute arose over the
basis on which the compensation to be paid to the owners should be assessed.
There was a statutory scheme for requisitioning, which included a statutory
right to compensation, but Ministers argued that the Crown was in any event
entitled to requisition the hotel under prerogative powers, in which event
compensation was payable ex gratia rather than being assessed in accordance
with the statutory scheme. That argument was rejected by the House of Lords on
the basis that “if the whole ground of something which could be done by the
prerogative is covered by the statute, it is the statute that rules” (per Lord
Dunedin at p 526). As Lord Dunedin reasoned:
“Inasmuch as the Crown is a party
to every Act of Parliament it is logical enough to consider that when the Act deals
with something which before the Act could be effected by the prerogative, and
specially empowers the Crown to do the same thing, but subject to conditions,
the Crown assents to that, and by that Act, to the prerogative being curtailed.”
(p 526)
The case thus established that, to the extent that a
matter has been regulated by Parliament, the Crown cannot regulate it
differently under the prerogative. The cases of Laker Airways Ltd v
Department of Trade [1977] QB 643 and R v Secretary of State for the
Home Department, Ex p Fire Brigades Union [1995] 2 AC 513 are cited by the
Miller claimants as more recent examples of the application of the same
principle, although in the former case only Roskill LJ relied on it (contrast
Lord Denning MR at pp 705G-706A and Lawton LJ at p 728A), while the decision in
the latter case was based on a different principle (see per Lord
Browne-Wilkinson at p 553G and Lord Lloyd of Berwick at p 573 C-D).
169.
In the light of these decided cases, and others to the same effect, the
Miller claimants argue that giving notification under article 50(2) will alter
domestic law and destroy statutory rights. That is because it will result in
the EU treaties ceasing to apply to the UK, in accordance with article 50(3),
from the date of the entry into force of the withdrawal agreement or, failing
that, from the expiry of a period of two years after notification, or any
longer period which may be agreed with the European Council. Since the EU
treaties have been given effect in domestic law by the 1972 Act, so as to
create rights enforceable before our national courts, it would offend against
the principle established in the Case of Proclamations, and explained
more recently in the Tin Council case, for that alteration in domestic
law to be effected under the prerogative. This argument assumes that, once
notification is given under article 50(2), the process of withdrawal from the
EU cannot be stopped. It is common ground in all the cases before the court
that it should proceed on that assumption. In any event, even if the process
might be stopped, it is common ground that Ministers’ power to give notice
under article 50(2) has to be tested on the basis that it may not be stopped.
In those circumstances, that is the basis on which this court is proceeding.
170.
Furthermore, since the 1972 Act makes provision for the effect of the EU
treaties in domestic law, and notification under article 50(2) will sooner or
later result in the treaties ceasing to have effect in domestic law, it is
argued that there is a conflict between the exercise of the prerogative to give
notification and the statutory scheme. Following De Keyser, that
conflict should be resolved in favour of the statute, by holding that the
prerogative must be constrained.
The referendum
171.
Both sides of the argument proceed on the basis that the referendum on
membership of the EU, held under the European Union Referendum Act 2015 (“the
2015 Act”), which resulted in a vote to leave the EU, does not provide the
answer. The Secretary of State’s argument proceeds on the basis that the Crown
has taken the decision under article 50(1), accepting the result of the
referendum. The Miller claimants argue that only Parliament can take that
decision. Both the Secretary of State and the Miller claimants proceed on the
basis that the referendum result was not itself a decision by the UK to withdraw
from the EU, in accordance with the UK’s constitutional requirements, and that
the 2015 Act did not itself authorise notification under article 50(2). In
these circumstances, there is no issue before the court as to the legal effect
of the referendum result. Nor is this an appropriate occasion on which to
consider the implications for our constitutional law of the developing practice
of holding referendums before embarking on major constitutional changes: a
matter on which the court has heard no argument.
Other arguments
172.
In addition to the arguments advanced by the parties to the Miller
appeal, the court also has before it the submissions presented on behalf of the
interested parties and interveners. They largely provide further elaboration of
the arguments presented on behalf of the principal parties. Without intending
any discourtesy, I do not think it is necessary to set out their arguments in
full, and would generally wish only to acknowledge the assistance which they
have provided. It is however appropriate to note the submissions made by the
Lord Advocate (which share common ground with those of the first interested
party and the fourth interveners), and by the Counsel General for Wales.
173.
One argument advanced by the Lord Advocate and by Ms Mountfield QC on
behalf of the first interested party is that the UK’s withdrawal from the EU
will alter the UK’s rule of recognition: that is to say, the rule which
identifies the sources of law in our legal system and imposes a duty to give
effect to laws emanating from those sources. The status of the EU institutions
as a recognised source of law will inevitably be revoked, sooner or later,
following notification under article 50(2). Since that will be a fundamental
alteration in the UK’s constitution, it can only be effected by Parliamentary
legislation. An Act of Parliament is therefore argued to be necessary before
notification can be given.
174.
The Lord Advocate also cites material from Scottish sources which is
consistent with the principle derived by the Miller claimants from English case
law, such as the Case of Proclamations and the Tin Council case.
This includes the provision of the Claim of Right Act 1689:
“… That all Proclamationes
asserting ane absolute power to Cass annull and Dissable lawes… are Contrair to
Law.”
This provision is analogous to the corresponding
provisions in sections 1 and 2 of the Bill of Rights 1688, to which the Miller
claimants refer:
“That the pretended power of
suspending of laws or the execution of laws by regall authority without consent
of Parlyament is illegall.
That the pretended power of
dispensing with laws or the execution of laws by regall authoritie as it hath
beene assumed and exercised of late is illegall.”
As Lord Denning MR noted, however, in McWhirter v
Attorney General [1972] CMLR 882, 886, the Bill of Rights did not restrict
the Crown’s prerogative powers in relation to foreign affairs: “the Crown
retained, as fully as ever, the prerogative of the treaty-making power.” The
same appears to be true of the Claim of Right. The Lord Advocate also cites
article 18 of the Union with England Act 1707. This provision, like the
corresponding provision in the Union with Scotland Act 1706, states that laws
in use in Scotland are to be “alterable by the Parliament of Great Britain”.
175.
The Lord Advocate and the Counsel General for Wales have also advanced
submissions concerning the Sewel Convention. That convention was originally
stated by Lord Sewel, when Parliamentary Under-Secretary of State at the
Scottish Office, in the House of Lords during the passage of the Scotland Bill.
He said that “we would expect a convention to be established that Westminster
would not normally legislate with regard to devolved matters in Scotland without the consent
of the Scottish Parliament”: Hansard (HL Debates), 21 July 1998, col 791. The
convention was later embodied in a Memorandum of Understanding between the UK Government
and the devolved governments (Cm 5240, 2001). Para 14 of the current Memorandum
of Understanding, which was published in October 2013, states:
“The United Kingdom Parliament
retains authority to legislate on any issue, whether devolved or not. It is
ultimately for Parliament to decide what use to make of that power. However,
the UK Government will proceed in accordance with the convention that the UK
Parliament would not normally legislate with regard to devolved matters except
with the agreement of the devolved legislature.”
Para 2 states:
“This Memorandum is a statement of
political intent, and should not be interpreted as a binding agreement. It does
not create legal obligations between the parties.”
In relation to Scotland, the convention was given
statutory recognition in section 28(8) of the Scotland Act 1998 (as amended by
section 2 of the Scotland Act 2016), which has to be read together with section
28(7):
“(7) This section does not
affect the power of the Parliament of the United Kingdom to make laws for
Scotland.
(8) But it is recognised
that the Parliament of the United Kingdom will not normally legislate with
regard to devolved matters without the consent of the Scottish Parliament.”
Summary of conclusions
176.
It may be helpful to summarise at this stage the conclusions which I
have reached in relation to the Miller appeal, before explaining the reasons
why I have arrived at them.
177.
I entirely accept the importance in our constitutional law of the
principle of Parliamentary supremacy over our domestic law, established in the Case
of Proclamations, the Tin Council case, and other similar cases such
as The Zamora. That principle does not, however, require that Parliament
must enact an Act of Parliament before the UK can leave the EU. That is because
the effect which Parliament has given to EU law in our domestic law, under the
1972 Act, is inherently conditional on the application of the EU treaties to
the UK, and therefore on the UK’s membership of the EU. The Act imposes no
requirement, and manifests no intention, in respect of the UK’s membership of
the EU. It does not, therefore, affect the Crown’s exercise of prerogative
powers in respect of UK membership. For essentially the same reason, the
supposed analogy with De Keyser appears to me to be misplaced. Further,
since the effect of EU law in the UK is entirely dependent on the 1972 Act, no
alteration in the fundamental rule governing the recognition of sources of law has
resulted from membership of the EU, or will result from notification under
article 50. It follows that Ministers are entitled to give notification under
article 50, in the exercise of prerogative powers, without requiring
authorisation by a further Act of Parliament.
178.
Given that conclusion, the argument in relation to the Sewel Convention
does not arise: the convention concerns Parliamentary legislation, not the
exercise of prerogative powers.
The European Communities Act 1972
179.
The issue which lies at the heart of these cases is the effect of the
1972 Act, as amended. Section 2(1) provides:
“All such rights, powers,
liabilities, obligations and restrictions from time to time created or arising
by or under the Treaties, and all such remedies and procedures from time to
time provided for by or under the Treaties, as in accordance with the Treaties
are without further enactment to be given effect or used in the United Kingdom
shall be recognised and available in law, and be enforced, allowed and followed
accordingly …”
180.
The expression “the Treaties” is defined by section 1(2). Put shortly,
it includes the pre-accession treaties (described in Part 1 of Schedule 1),
taken with other treaties listed in section 1(2), and “any other treaty entered
into by the EU ... with or without any of the member States, or entered into,
as a treaty ancillary to any of the Treaties, by the United Kingdom”. In relation
to the treaties in the latter categories, section 1(3) lays down a procedure to
be followed:
“If Her Majesty by Order in
Council declares that a treaty specified in the Order is to be regarded as one
of the EU Treaties as herein defined, the Order shall be conclusive that it is
to be so regarded; but a treaty entered into by the United Kingdom after the
22nd January 1972, other than a pre-accession treaty to which the United
Kingdom accedes on terms settled on or before that date, shall not be so
regarded unless it is so specified, nor be so specified unless a draft of the
Order in Council has been approved by resolution of each House of Parliament.”
The term “treaty” is defined by section 1(4) as including
“any international agreement, and any protocol or annex to a treaty or
international agreement”.
181.
Section 1(2) is prospective in scope: it is not confined to treaties
existing when the 1972 Act was originally enacted, but envisages treaties being
entered into in the future. At the time of accession, the Treaties were
relatively few in number, and included the Treaty of Rome. Since then, many
other treaties, including the Maastricht Treaty and the Treaty of Lisbon, have
been added, either by the amendment of section 1(2) so as to add to the list of
specified treaties, or by the making of Orders of Council approved by
resolutions of both Houses, under section 1(3).
182.
Returning to section 2(1), it is important to understand why it was
necessary. It follows from the UK’s dualist approach to international law that
the Treaties could only be given effect in our domestic law by means of an Act
of Parliament. This was so notwithstanding the doctrine of EU law, established
by the European Court of Justice in Van Gend en Loos (Case C-26/62)
[1963] ECR 1, 12, that the Treaty of Rome was “more than an agreement which
merely creates mutual obligations between the contracting states”, and that “independently
of the legislation of member states, Community law therefore not only imposes
obligations on individuals but is also intended to confer upon them rights
which become part of their legal heritage.” This doctrine was reiterated in Costa
v ENEL (Case C-6/64) [1964] ECR 585, 593:
“By contrast with ordinary
international treaties, the EEC Treaty has created its own legal system which,
on the entry into force of the Treaty, became an integral part of the legal
systems of the member states and which their courts are bound to apply.”
183.
This doctrine is incompatible with the dualist approach of the UK
constitution, and ultimately with the fundamental principle of Parliamentary
sovereignty. This was explained by Lord Denning MR in two cases decided around
the time when the UK joined the European Communities. The first, Blackburn v
Attorney General [1971] 1 WLR 1037, was as explained earlier an attempt to
prevent the Crown from acceding to the Treaty of Rome by signing the Treaty of
Accession. Having been referred to Costa v ENEL, the Master of the Rolls
observed:
“Even if a treaty is signed, it is
elementary that these courts take no notice of treaties as such. We take no
notice of treaties until they are embodied in laws enacted by Parliament. and
then only to the extent that Parliament tells us.” (p 1039)
The second case, McWhirter v Attorney General, was
decided after the UK had signed the Treaty of Accession but before the 1972 Act
had been enacted. The Master of the Rolls stated:
“Even though the Treaty of Rome
has been signed, it has no effect, so far as these courts are concerned, until
it is made an Act of Parliament. Once it is implemented by an Act of
Parliament, these courts must go by the Act of Parliament. Until that day
comes, we take no notice of it.” (p 886)
As will appear, section 2(1) enables EU law to be given
direct effect in our domestic law, but within a framework established by
Parliament, in which Parliamentary sovereignty remains the fundamental
principle.
184.
Considering section 2(1) in greater detail, it is a long and
densely-packed provision, whose syntax is complex, and whose meaning is not
immediately clear. It requires to be read with care. Its essential structure
can be expressed in this way:
All such [members of a
specified category] as [satisfy a specified condition] shall be
[dealt with in accordance with a specified requirement].
Rules in that form can be used in many contexts: for
example, all such prisoners as are charged with conduct contrary to good order
and discipline shall be brought before the Governor; all such incoming
passengers as are displaying symptoms of ebola shall be placed in quarantine.
185.
Two features of such rules should be noted. First, the rule is
conditional in nature: the application of the requirement which it imposes
depends on there being members of the specified category that satisfy the
relevant condition. In the examples just given, for example, the relevant
conditions are being charged with conduct contrary to good order and
discipline; and displaying symptoms of ebola. Secondly, although a rule in that
form contemplates the possibility that the condition may be satisfied, the form
of the rule does not convey any intention that the condition will be
satisfied. In the examples just given, for example, the rule does not convey an
intention that there will be prisoners who are charged, or passengers who
display symptoms of ebola. The intention of the rule-maker, so far as it can be
derived from the rule, would not therefore be thwarted or frustrated if, either
immediately, or at some point in the future, there were no members of the
relevant category which satisfied the relevant condition.
186.
In section 2(1), the relevant category is:
“rights, powers, liabilities,
obligations and restrictions from time to time created or arising by or under
the Treaties, and ... remedies and procedures from time to time provided for by
or under the Treaties.”
The words “from time to time”, which appear twice, mean
that section 2(1) is concerned not only with the Treaties, and the regulations
and other legal instruments made under them, as they stood at the time of
accession, but also with the Treaties and instruments made under them as they
may change over time in the future. This recognises the fact that the “rights,
powers, liabilities, obligations and restrictions … created or arising by or
under the Treaties”, and the “remedies and procedures … provided for by or under
the Treaties”, alter from time to time, as a result of changes to the Treaties
or to the laws made under the procedures laid down in the Treaties.
187.
This is relevant in the present context, since it demonstrates that
Parliament has recognised that rights given effect under the 1972 Act may be
added to, altered or revoked without the necessity of a further Act of
Parliament (something which is also apparent from section 1(3)). In response to
this point, the majority of the court draw a distinction, described as “a vital
difference”, between changes in domestic law resulting from variations in the
content of EU law arising from new EU legislation, and changes resulting from withdrawal
by the UK from the European Union. There is no basis in the language of the
1972 Act for drawing any such distinction. Under the arrangements established
by the Act, alterations in the UK’s obligations under the Treaties are
automatically reflected in alterations in domestic law. That is equally the
position whether the alterations in the UK’s obligations under the Treaties
result from the Treaties’ ceasing to apply to the UK, in accordance with
article 50, or from changes to the Treaties or to legislation made under the
Treaties. The Act simply creates a scheme under which the effect given to EU
law in domestic law reflects the UK’s international obligations under the
Treaties, whatever they may be. There is nothing in the Act to suggest that
Parliament’s intention to ensure an exact match depends on the reason why they
might not match.
188.
The requirement imposed by section 2(1) is:
“shall be recognised and
available in law, and be enforced, allowed and followed accordingly.”
This phrase gives effect in domestic law to all such
rights, powers and so forth as satisfy the relevant condition.
189.
The condition which must be satisfied, in order for that requirement to
apply, is set out in the following phrase:
“All such ... as in accordance
with the Treaties are without further legal enactment to be given legal effect
or used in the United Kingdom.”
This phrase is of particular importance to the resolution
of the Miller appeal. It follows from this phrase that rights, powers and so
forth created or arising by or under the Treaties are not automatically given
effect in domestic law. Legal effect is given only to such rights, powers and
so forth arising by or under the Treaties as “in accordance with the Treaties”
are without further enactment to be given legal effect “in the United Kingdom”.
In this respect, once more, the 1972 Act creates a scheme under which the
effect given to EU law in domestic law exactly matches the UK’s international
obligations, whatever they may be.
190.
The words “without further enactment” reflect the EU law concept of
direct effect, established by Van Gend en Loos and Costa v ENEL as
explained above (and, in so far as it may be regarded as distinct, the concept
of direct applicability, established by article 189 of the Treaty of Rome and
now stated in article 288 of the Treaty on the Functioning of the European
Union (TFEU): see section 18 of the European Union Act 2011). Accordingly,
where “in accordance with the Treaties”, rights, powers and so forth are to be
directly applicable or directly effective in the law of the UK, section 2(1)
achieves that effect. But there is no obligation “in accordance with the
Treaties” to give effect in the UK to EU rights, powers and so forth merely
because they are directly effective under EU law: such an obligation arises
only if and for so long as the Treaties apply to the UK. The extent to which
the effect given by section 2(1) to rights, powers and so forth arising under
EU law is dependent on the Treaties cannot therefore be confined to the
question whether the rights, powers and so forth are, under the Treaties,
directly effective: it also depends, more fundamentally, on whether the Treaties
impose any obligations on the UK to give effect to EU law.
191.
Whether rights, powers and so forth are to be given legal effect in the UK,
in accordance with the Treaties, therefore depends on whether the Treaties apply
to the UK. As the majority of the court state at para 77, “Parliament cannot
have intended that section 2 should continue to import the variable content of
EU law into domestic law, or that the other consequences of the 1972 Act
described in paras 62 to 64 above should continue to apply, after the United
Kingdom had ceased to be bound by the EU Treaties.” If the Treaties do not
apply to the UK, then there are no rights, powers and so forth which, in
accordance with the Treaties, are to be given legal effect in the UK.
192.
This point is illustrated by the fact that, when the 1972 Act came into
force on 17 October 1972, the Treaty of Accession had not yet been ratified or
entered into force, with the consequence that the Treaties did not apply to the
UK. In consequence, section 2(1) initially had no practical application, there
being at that time no rights, powers and so forth which, in accordance with the
Treaties, were to be given legal effect in the UK. It was not until 1 January
1973, when the Treaty of Accession came into force, following its ratification
by the Crown in the exercise of its prerogative powers, that the condition to
which section 2(1) subjected the domestic effect of EU law was satisfied.
193.
The Miller claimants respond to this point by arguing that the effect of
the 1972 Act was to require the Crown to ratify the Treaty of Accession. This
is not, in the first place, an answer to the point that the effect of section
2(1) was contingent on the Treaty’s entering into force. Furthermore, although
it is fair to say that the 1972 Act was enacted in anticipation that
ratification was likely to occur that is far from saying that ratification was
required by statute.
194.
In the first place, as explained in para 159 above, it is a basic
principle of our constitution that the conduct of foreign relations, including
the ratification of treaties, falls within the prerogative powers of the Crown.
That principle is so fundamental that it can only be overridden by express
provision or necessary implication, as is accepted in the majority judgment at para
48. No such express provision exists in the 1972 Act. Nor do its provisions
override that principle as a matter of necessary implication. As Lord Hobhouse
of Woodborough explained in R (Morgan Grenfell & Co Ltd) v Special
Commissioner of Income Tax [2002] UKHL 21; [2003]1 AC 563, para 45:
“A necessary implication is not
the same as a reasonable implication … A necessary implication is one
which necessarily follows from the express provisions of the statute construed
in their context. It distinguishes between what it would have been sensible or
reasonable for Parliament to have included or what Parliament would, if it had
thought about it, probably have included and what it is clear that the express
language of the statute shows that the statute must have included. A necessary
implication is a matter of express language and logic not interpretation.”
195.
Secondly, it is not difficult to contemplate circumstances in which
ratification might not have occurred. The passage of the 1972 Act was hard
fought (as the former minister Ken Clarke’s memoir, Kind of Blue (2016),
pp 66ff, makes clear), and the possibility of a future Labour Government taking
the UK out of the European Communities was apparent. When the Labour Government
subsequently came to power, in 1974, it proceeded to hold a referendum in
accordance with its manifesto commitment. If the Conservative Government had
fallen and the Opposition had come to power while the Treaty of Accession
remained unratified, the incoming Labour Government would have been unlikely to
ratify it without holding a referendum. Indeed, the Opposition continued to
oppose ratification following the Parliamentary passage of the 1972 Act, using
an adjournment debate on the date of Royal Assent to criticise ratification as
being against the wish of the British people (Hansard (HC Debates), 17 October
1972, cols 58-59). The Government won the division by 31 votes; but if it had
lost it, would it have been acting unlawfully if it had decided to respect the
will of the House of Commons by not ratifying the treaty? Would it have been
legally bound by the 1972 Act to ratify the treaty regardless? These questions
can only be answered in the negative. The point can also be illustrated by
considering what would have happened if some crisis had occurred in the UK’s
diplomatic relations with one of its intended partners in the European
Communities. If, for example, some dispute comparable in gravity to the then
current dispute with Iceland, or the subsequent dispute with Argentina, had
occurred with one of the other parties to the Treaty of Rome or the Treaty of
Accession, is it likely that the UK would then have ratified the Treaty of
Accession?
196.
The seemingly less ambitious suggestion in the majority judgment at para
78, that it was not “contemplated”, when the 1972 Act was being passed, that Ministers
would not ratify the Treaties or that, having ratified them, would at some
point repudiate them, meets the same objection. That ratification was
contemplated is clear, but that tells you nothing about whether the operation
of the 1972 Act is conditional on continued membership. What individual members
of Parliament contemplated, or expected to happen, is on ordinary principles
not relevant to the construction of the Act. In any event it is likely to have varied
a good deal. The possibility of the UK being taken out of the European
Communities if there were a change of government was apparent.
197.
Referring to the structure of section 2(1) of the 1972 Act as set out at
para 184 above, it is said at para 82 of the majority judgment that “the
membership of the specified category [viz, the rights, powers and so forth
arising under EU law to which domestic effect must be given] has a variable
content which is contingent on the decisions of non-UK entities”. Section 2(1)
says nothing, however, which either expressly or impliedly limits the
contingency, to which the duty to give domestic effect to EU law is subject, to
decisions by non-UK entities. The contingency is that the rights, powers and so
forth are “such ... as in accordance with the Treaties are without further
legal enactment to be given legal effect or used in the United Kingdom”. It
follows from that contingency that the effect given to EU law in our domestic
law is conditional on the Treaties’ application to the UK. That condition was
not satisfied when the Act came into force, because the Treaties did not then
apply to the UK. The content of the specified category was therefore zero. The
satisfaction of the condition, some months later, depended on the decision of a
UK entity: it depended on the Crown’s exercise of prerogative powers. The
content would return to zero if the condition ceased to be satisfied as the
result of the UK’s invoking article 50. That would be so whether the decision
to invoke article 50 had, or had not, been authorised by an Act of Parliament.
It is, indeed, accepted by the majority that the condition would cease to be
satisfied if the Crown invoked article 50 after being authorised to do so by
statute. So the contingency cannot be limited to decisions by non-UK entities.
The only issue in dispute is whether the action by the Crown, as a result of
which the contingency will cease to be satisfied, must be authorised by an Act
of Parliament. On that issue, section 2(1) is silent. Neither expressly nor by
implication does it require such action to be authorised by Parliament. The
fact that section 2(1) is itself a fixed rule of domestic law enacted by
Parliament does not affect that conclusion, since a fixed rule which is
conditional will necessarily operate only for as long as the condition is
satisfied. Nor does it support a conclusion that Parliament has, by necessary implication,
deprived the Crown of its prerogative powers: from what words, one might ask,
is that implication derived?
The amendment of the 1972 Act by section 2 of the European
Union (Amendment) Act 2008
198.
I have discussed the position as it stood in 1972. But the real question
in the Miller appeal concerns the position following the signing of the Treaty
of Lisbon in 2007, and its entry into force in 2009. That is because it was the
Treaty of Lisbon which inserted article 50 into the TEU.
199.
Parliament addressed the Treaty of Lisbon in the European Union
Amendment Act 2008 (“the 2008 Act”). Section 2 of that Act provides:
“At the end of the list of
treaties in section 1(2) of the European Communities Act 1972 (c 68) add; and
(s) the Treaty of Lisbon Amending
the Treaty on European Union and the Treaty Establishing the European Community
signed at Lisbon on 13 December 2007 (together with its Annex and protocols),
excluding any provision that relates to, or in so far as it relates to or could
be applied in relation to, the Common Foreign and Security Policy;”
Section 2 of the 2008 Act thus added the Lisbon Treaty
(other than the parts dealing with the Common Foreign and Security Policy) to
the Treaties listed in section 1 of the 1972 Act, to which section 2(1) of that
Act refers.
200.
It follows that the words “such ... as in accordance with the Treaties
are without further legal enactment to be given legal effect or used in the United
Kingdom”, in section 2(1) of the 1972 Act, must be read as meaning “such ... as
in accordance with the Treaties, including article 50 TEU, are without further
legal enactment to be given legal effect or used in the United Kingdom”. The
contingency to which the effect of EU law in our domestic law has been subject
since the amendment of the 1972 Act by the 2008 Act therefore includes the
potential operation of article 50. It is entirely “in accordance with the
Treaties” for article 50 to operate, with the result that, when a withdrawal
agreement comes into force, or the time allowed under article 50(3) expires,
there may be no rights which, “in accordance with the Treaties”, are to be given
legal effect in the UK.
201.
This conclusion is not inconsistent with the statement by the majority
of the court, at para 104, that article 50 is not given effect in domestic law
by section 2 of the 1972 Act. The majority may be right about that, although
the point has not been argued, and the opposite view may be arguable (see, for
example, Robert Craig, “Casting Aside Clanking Medieval Chains: Prerogative, Statute
and Article 50 after the EU Referendum”, (2016) MLR 1041, where it is argued
that section 2(1) of the 1972 Act has given article 50 domestic effect as a
power exercisable by Ministers, superseding the prerogative but also supplying
the Parliamentary authorisation desiderated by the Miller claimants). Whether
article 50 has direct effect in domestic law does not however affect the
question whether its operation forms part of the contingency on which the
direct effect given to EU law by the 1972 Act is dependent.
202.
The result of section 2 of the 2008 Act is thus that the effect given by
section 2(1) of the 1972 Act to EU law, which was always conditional on the
Treaties’ applying to the UK, is now subject to the exercise of the power
conferred by article 50 to initiate a particular procedure under which the
Treaties will cease to apply to the UK.
203.
The Miller claimants respond to these points by arguing that section
2(1) of the 1972 Act impliedly requires the power of withdrawal under article
50 to be exercised by Parliament. In so far as that argument is based on the
common law principles established by such authorities as the Case of
Proclamations, The Zamora, the Tin Council case and the De Keyser
case, I shall discuss those principles later. One can however note at present
that, as previously mentioned, there is nothing in section 2(1) which
demonstrates that Parliament intended to depart from the fundamental principle
that powers relating to the UK’s participation in treaty arrangements are
exercisable by the Crown. As the majority of the court rightly state at para
108, the fact that a statute says nothing about a particular topic can rarely,
if ever, justify inferring a fundamental change in the law. Nor would
withdrawal under article 50 be inconsistent with the 1972 Act, any more than a
failure to ratify the Treaty of Accession. The result would simply be that
there were no rights answering to the description in section 2(1): there would
be no rights “such ... as in accordance with the Treaties are without further
legal enactment to be given legal effect or used in the United Kingdom”.
204.
This is a point of general importance. If Parliament chooses to give
domestic effect to a treaty containing a power of termination, it does not
follow that Parliament must have stripped the Crown of its authority to
exercise that power. In the present context, the impact of the exercise of the
power on EU rights given effect in domestic law is accommodated by the 1972
Act: the rights simply cease to be rights to which section 2(1) applies.
Withdrawal under article 50 alters the application of the 1972 Act, but is not
inconsistent with it. The application of the 1972 Act after a withdrawal agreement
has entered into force (or the applicable time limit has expired) is the same
as it was before the Treaty of Accession entered into force. As in the 1972 Act
as originally enacted, Parliament has created a scheme under which domestic law
tracks the obligations of the UK at the international level, whatever they may
be.
Other post-1972 legislation
205.
Other post-1972 legislation is of only secondary importance. It is
however relevant in so far as it demonstrates, first, that Parliament has
legislated on the basis that the 1972 Act did not restrict the exercise of the
foreign affairs prerogative in relation to other aspects of the EU treaties,
and secondly, that Parliament is perfectly capable of making clear its
intention to restrict the exercise of the prerogative when it wishes to do so.
206.
Several examples can be given. The earliest is section 6(1) of the
European Parliamentary Elections Act 1978 (as amended by section 3 of the
European Communities (Amendment) Act 1986), which provided:
“No treaty which provides for any
increase in the powers of the European Parliament shall be ratified by the
United Kingdom unless it has been approved by an Act of Parliament.”
That provision was later re-enacted in section 12 of the
European Parliamentary Elections Act 2002 (“the 2002 Act”).
207.
A further example is the 2008 Act, which imposed numerous restrictions
on the exercise of prerogative powers in relation to provisions of the Lisbon
Treaty. Section 5 is particularly significant. It provided:
“(1) A treaty which satisfies
the following conditions may not be ratified unless approved by Act of
Parliament.
(2) Condition 1 is that the
treaty amends -
(a) the Treaty on European
Union (signed at Maastricht on 7 February 1992),
(b) the Treaty on the
Functioning of the European Union (the Treaty establishing (what was then
called) the European Economic Community, signed at Rome on 25 March 1957
(renamed by the Treaty of Lisbon)), or
(c) the Treaty establishing
the European Atomic Energy Community (signed at Rome on 25 March 1957).
(3) Condition 2 is that the
treaty results from the application of article 48(2) to (5) of the Treaty on
European Union (as amended by the Treaty of Lisbon) (Ordinary Revision
Procedure for amendment of founding Treaties, including amendments affecting EU
competence).”
Section 5 therefore prohibited the ratification of
treaties unless approved by an Act of Parliament, where the treaties amended
the TEU or the TFEU, and resulted from the application of article 48(2) to (5)
TEU.
208.
Article 48 TEU was a provision introduced by the Lisbon Treaty to
provide a simplified procedure for the conclusion of treaties amending the TEU
or the TFEU. Paragraphs (2) to (5) provided, so far as material:
“2. The Government of any
member state, the European Parliament or the Commission may submit to the
Council proposals for the amendment of the Treaties. These proposals may, inter
alia, serve either to increase or to reduce the competences conferred on
the Union in the Treaties ...
3. If the European
Council, after consulting the European Parliament and the Commission, adopts by
a simple majority a decision in favour of examining the proposed amendments,
the President of the European Council shall convene a Convention composed of
representatives of the national Parliaments, of the Heads of State or
Government of the member states, of the European Parliament and of the Commission
... The Convention shall examine the proposals for amendments and shall adopt
by consensus a recommendation to a conference of representatives of the
governments of the member states as provided for in paragraph 4.
4. A conference of
representatives of the governments of the member states shall be convened by
the President of the Council for the purpose of determining by common accord
the amendments to be made to the Treaties.
The amendments shall enter into
force after being ratified by all the member states in accordance with their respective
constitutional requirements.
5. If, two years after the
signature of a treaty amending the Treaties, four fifths of the member states
have ratified it and one or more member states have encountered difficulties in
proceeding with ratification, the matter shall be referred to the European
Council.”
209.
The TFEU establishes numerous rights which are given effect in the UK by
section 2(1) of the 1972 Act. Those rights could be altered by a treaty
concluded by the UK Government and the governments of the other member states,
under article 48(2) TFEU. Section 5 of the 2008 Act required an Act of
Parliament before such a treaty could be ratified. If the Miller claimants’
arguments are correct, an Act of Parliament was already necessary before the UK
Government could exercise the treaty-making prerogative so as to alter those
rights. Section 5 of the 2008 Act was, however, understood as introducing a
requirement for legislation where none previously existed: that was the mischief
intended to be addressed. For example, the House of Lords Select Committee on
the Constitution stated:
“Clause 5 of the Bill seeks to
create a new requirement for prior parliamentary authorisation of ratification.
It would apply to amendments of the founding treaties - the Treaty on European
Union, the Treaty on the Functioning of the European Union and the Treaty
Establishing the European Atomic Energy Community - when those amendments are
made by the ‘ordinary revision procedure’.
Before examining clause 5 in more
detail, it must be noted that the need for express parliamentary approval
before the Government ratifies a treaty amending the founding Treaties of the
EU has been recognised in one important respect for some time.” (6th Report of
Session 2007-08, European Union Amendment Bill and the Lisbon Treaty:
Implications for the UK Constitution, HL 84, 2008, paras 23-24).
The latter sentence referred not to the 1972 Act, but to
section 12 of the 2002 Act, discussed at para 206 above.
210.
It is also relevant to note section 6(1) of the 2008 Act, which imposed
restrictions on the UK’s participation in several procedures laid down in the
Lisbon Treaty:
“A Minister of the Crown may not
vote in favour of or otherwise support a decision under any of the following
unless Parliamentary approval has been given in accordance with this section
...”
The section went on to require Parliamentary approval in
the form of a resolution of both Houses. The provisions of the Lisbon Treaty to
which section 6 applied did not include article 50 TEU.
211.
The Constitutional Reform and Governance Act 2010 (“the 2010 Act”) is
also relevant. It codifies the previous Ponsonby Rule (a convention that
treaties, with limited exceptions, would be laid before Parliament before they were
ratified), and sets out detailed procedures for Parliamentary scrutiny of new
treaties. It does not apply to treaties which are covered by section 5 of the
2008 Act or by the European Union Act 2011 (“the 2011 Act”), to which I turn
next. A withdrawal agreement under article 50(3) would be likely to fall within
its scope, but it would have no application to a decision to withdraw from a
treaty or to commence the process of withdrawal.
212.
The 2011 Act repealed section 12 of the 2002 Act and sections 5 and 6 of
the 2008 Act (subject to an immaterial exception), replacing them with a more
elaborate system of Parliamentary control. The evident aim was to introduce
stronger Parliamentary controls, in relation to matters falling within the
scope of the legislation, than were present under the existing law. The power
to amend article 50(3), concerning the extension of the two year period for
negotiation, or to adopt the ordinary legislative procedure in relation to that
provision, was brought within the scope of these controls by sections 4 and 6,
read with Schedule 1. Article 50(1) and (2), concerning the decision to
withdraw and its notification, were not.
213.
As explained earlier, section 5 of the 2008 Act was enacted on the basis
that the Crown could exercise its treaty-making power so as to alter EU rights
given effect in domestic law by the 1972 Act, without necessarily requiring
further authorisation by an Act of Parliament. One can also infer from this
body of legislation, as the Divisional Court did in the case of R v Secretary
of State for Foreign Affairs, Ex p Rees-Mogg [1994] QB 552, discussed in
paras 235-237 below, that since Parliament has repeatedly placed express
restrictions on the exercise of the prerogative in relation to the EU treaties,
the absence of a particular restriction in the 1972 Act tends to support the
conclusion that no such restriction was intended to arise by implication.
214.
It is also necessary to consider the 2015 Act. For the reasons explained
in para 171 above, I do not propose to consider the legal implications of the
referendum result. It is, however, proper to take note of the judgment of Lord
Dyson MR, with whom the other members of the court agreed, in R (Shindler) v
Chancellor of the Duchy of Lancaster [2016] EWCA Civ 419; [2016] 3 WLR 1196. That was a case in which a challenge was brought to the franchise rules
applicable to the referendum. Having referred to the provision in article 50(1)
that any member state may decide to withdraw from the EU “in accordance with
its own constitutional requirements”, the Master of the Rolls stated:
“The 2015 Act contains part of the
constitutional requirements of the UK as to how it may decide to withdraw from
the EU ... In short, by passing the 2015 Act, Parliament decided that one of
the constitutional requirements that had to be satisfied as a condition of a
withdrawal from the EU was a referendum.” (paras 13 and 19)
It follows that, in enacting the 2015 Act, Parliament
considered withdrawal from the EU, and made the holding of a referendum part of
the process of taking the decision under article 50(1). It laid down no further
role for itself in that process. In the absence of any provision requiring
Parliamentary authorisation of the decision, it is difficult, against the
background of such provisions being laid down in the Acts of 1978, 2002, 2008,
2010 and 2011, to regard such a requirement as being implicit.
Using the prerogative to alter the law, or take away
statutory rights?
215.
In the light of the foregoing discussion, one can return to the
arguments advanced by the Miller claimants on the basis of authorities
concerned with the common law limits of prerogative powers. The first argument,
summarised at paras 165-167 and 169 above, is that the giving of notification
under article 50(2) will result in the alteration of the law and the
destruction of statutory rights, and therefore cannot be effected in the
exercise of prerogative powers, applying the principles established in such
cases as the Case of Proclamations, The Zamora, the Tin Council case,
and Higgs v Minister of National Security, and reflected also in the
Bill of Rights and the Claim of Right.
216.
The argument that the 1972 Act created statutory rights which cannot be
taken away without a further Act of Parliament starts from a premise which
requires examination. The 1972 Act did not create statutory rights in the same
sense as other statutes, but gave legal effect in the UK to a body of law now
known as EU law. As explained at paras 186-187 above, section 2(1) recognises
that the rights arising under that body of law can be altered from time to
time, as a result of changes to the Treaties or to the laws made under the
procedures laid down in the Treaties, without the necessity of a further Act of
Parliament. Such alterations result not only in the creation of EU rights which
are consequently given effect in domestic law by the 1972 Act, but also in the repeal
and restriction of EU rights previously created, and given effect under
domestic law. The successive regulations imposing fishing quotas are an
example. To give another example, if Greece were to decide to leave the EU
while the UK remained a member, the Treaties would cease to apply to Greece
either when a withdrawal agreement entered into force, or in any event after
two years had expired. Greek citizens living in the UK would then cease to
enjoy the EU rights which continued to be enjoyed here, for example, by French
citizens. As these examples illustrate, rights given direct effect by section
2(1) of the 1972 Act are inherently contingent, and can be altered without any
further Act of Parliament. This is a very different situation from any
contemplated by the judges in the cases relied on, or by the Scottish and
English Parliaments at the time of the Glorious Revolution or the Acts of
Union.
217.
As noted earlier, the majority of the court respond to this point by
drawing a distinction between changes which result from the UK’s giving notice
under article 50, for which a further Act of Parliament is argued to be
necessary, and changes which result from any other alteration in the Treaties
or in the instruments made under the Treaties, for which no further Act of Parliament
is necessarily required. That distinction cannot be derived from the principle
established by the Case of Proclamations. It has to be based on an interpretation
of the 1972 Act: the matter which was discussed at paras 179-214 above. For the
reasons there explained, I see no basis in the 1972 Act for drawing any such
distinction. The Act simply creates a scheme under which domestic law reflects
the UK’s international obligations, whatever they may be.
218.
It is equally questionable whether notification under article 50 will
alter “the law of the land”, in the sense in which judges have used that
expression. That can be illustrated by reflecting on the effect of
notification, and on the ability of Parliament to maintain in force the EU
rights currently given effect under section 2(1) of the 1972 Act. The giving of
notification does not in itself alter EU rights or the effect given to them in
domestic law. Nor does it impinge on Parliament’s competence to enact
legislation during the intervening period before the treaties cease to have
effect. Parliament can enact whatever provisions it sees fit in order to
address the consequences of withdrawal from the EU, including provisions
designed to protect rights which are currently derived from EU law. Parliament
cannot, however, replicate EU law. It cannot establish those elements of it
which involve reciprocal arrangements with the other member states, or which
involve the participation of EU institutions. Nor can it create rights which
have the distinguishing characteristics of EU rights, such as priority over
subsequent legislation, and authoritative interpretation by the Court of
Justice. The fact that notification alters no law, and that Parliament retains
full competence to legislate so as to protect rights before withdrawal occurs,
illustrates how different this situation is from those addressed in the cases
relied upon. Equally, the fact that the enactment of EU law lies beyond the
ability of Parliament illustrates how different it is from “the law of the
land” as usually understood.
219.
More fundamentally, however, the argument that withdrawal from the EU
would alter domestic law and destroy statutory rights, and therefore cannot be
undertaken without a further Act of Parliament, has to be rejected even if one
accepts that the 1972 Act creates statutory rights and that withdrawal will
alter the law of the land. It has to be rejected because it ignores the conditional
basis on which the 1972 Act gives effect to EU law. If Parliament grants rights
on the basis, express or implied, that they will expire in certain
circumstances, then no further legislation is needed if those circumstances
occur. If those circumstances comprise the UK’s withdrawal from a treaty, the
rights are not revoked by the Crown’s exercise of prerogative powers: they are
revoked by the operation of the Act of Parliament itself.
220.
In so far as the Miller claimants place reliance on rights under EU law
as given effect in the legal systems of other member states, such as the right of
UK citizens to live and work in Greece, there is no rule which prevents
prerogative powers being exercised in a way which alters rights arising under
foreign law.
221.
In so far as the Miller claimants place reliance on statutes creating
rights in respect of EU institutions, such as the right to vote in elections to
the European Parliament under the European Parliamentary Elections Act 2002,
such statutory rights are obviously conditional on the UK’s continued
membership of the EU. Parliament cannot have intended them to operate on any
other basis. If they cease to be effective following the UK’s withdrawal from
the EU, that is inherent in the nature of the right which Parliament conferred.
The only logical alternative is to hold that Parliament has created a right to
remain in the EU, and none of the arguments goes that far.
Using the prerogative to revoke a source of law?
222.
As explained at para 173 above, it is argued that the 1972 Act created
“an entirely new, independent and overriding source of domestic law” (as it is
put in the majority judgment at para 80). Since the identification of a
country’s sources of law is one of the most fundamental functions of its
constitution, it follows that the Crown cannot lawfully revoke a source of law
in the exercise of prerogative powers. So runs the argument.
223.
As put by counsel, this argument is based on the concept of the rule of
recognition: that is to say, the foundational rule in a legal system which
identifies the sources of law in that system and imposes a duty to give effect
to laws emanating from those sources. The Lord Advocate and Ms Mountfield QC
argue that the rule would be altered by withdrawal from the EU, and therefore,
sooner or later, by the giving of notification under article 50.
224.
The UK’s entry into the EU did not, however, alter its rule of
recognition, and neither would its withdrawal. That is because EU law is not a
source of law of the relevant kind: that is to say, a source of law whose
validity is not dependent on some other, more fundamental, source of law, but
depends on the ultimate rule of recognition. The true position was explained by
Lord Mance in Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591, para 80:
“For a domestic court, the
starting point is, in any event, to identify the ultimate legislative authority
in its jurisdiction according to the relevant rule of recognition. The search
is simple in a country like the United Kingdom with an explicitly dualist
approach to obligations undertaken at a supranational level. European law is
certainly special and represents a remarkable development in the world's legal
history. But, unless and until the rule of recognition by which we shape our
decisions is altered, we must view the United Kingdom as independent,
Parliament as sovereign and European law as part of domestic law because
Parliament has so willed. The question how far Parliament has so willed is thus
determined by construing the 1972 Act.”
225.
As Lord Mance rightly explained, it follows from the UK’s dualist
approach to international law that EU law is not one of the sources of law
identified by the UK’s rule of recognition. That was recognised in the cases of
Blackburn v Attorney General and McWhirter v Attorney General, as
explained in para 183 above. As a source of law, EU law, like legislation
enacted by the devolved legislatures, or delegated legislation made by
Ministers, is entirely dependent on statute (which is not, of course, to say
that EU law has the same effects, as devolved or delegated legislation). It
derives its legal authority from a statute, which itself derives its authority
from the rule of recognition identifying Parliamentary legislation as a source
of law. The recognition of its validity does not alter any fundamental
principle of our constitution.
226.
The fact that the 1972 Act has a prospective effect, in giving effect to
laws made from time to time by the EU institutions, does not affect this
analysis. Nor does the limited primacy given to EU law by the 1972 Act alter
the position, since that primacy itself derives from the 1972 Act. That was
recognised by Lord Bridge of Harwich in R v Secretary of State for
Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603:
“Under the terms of the Act of
1972 it has always been clear that it was the duty of a United Kingdom
court, when delivering final judgment, to override any rule of national law
found to be in conflict with any directly enforceable rule of Community law.”
(p 659: emphasis supplied)
The source of law which is validated by the rule of
recognition therefore remains Parliament, not the EU. Since the effect of EU
law is dependent on an Act of Parliament, the rule of recognition is unchanged.
227.
Parliament has itself made it clear that EU law has not altered the UK’s
rule of recognition. Section 18 of the 2011 Act provides:
“Directly applicable or directly
effective EU law (that is, the rights, powers, liabilities, obligations,
restrictions, remedies and procedures referred to in section 2(1) of the
European Communities Act 1972) falls to be recognised and available in law in
the United Kingdom only by virtue of that Act or where it is required to be
recognised and available in law by virtue of any other Act.”
Since EU law has no status in UK law independent of
statute, it follows that the only relevant source of law has at all times been
statute.
228.
This understanding underpins the discussion of the constitutional status
of EU law in R (Buckinghamshire County Council) v Secretary of State for
Transport [2014] UKSC 3; [2014] 1 WLR 324. The issue raised by a conflict
between an EU directive and long-established constitutional principles of
domestic law was identified as “the extent, if any, to which these principles
may have been implicitly qualified or abrogated by the European Communities Act
1972” (para 78). The issue, in other words, was one of domestic law, turning on
the interpretation of the 1972 Act. It was said:
“Contrary to the submission made
on behalf of the claimants, that question cannot be resolved simply by applying
the doctrine developed by the Court of Justice of the supremacy of EU law,
since the application of that doctrine in our law itself depends upon the 1972
Act. If there is a conflict between a constitutional principle, such as that
embodied in article 9 of the Bill of Rights, and EU law, that conflict has to
be resolved by our courts as an issue arising under the constitutional law of
the United Kingdom.” (para 79)
The implication is that EU law is not itself an
independent source of domestic law, but depends for its effect in domestic law
on the 1972 Act: an Act which does not confer effect upon it automatically and
without qualification, but has to be interpreted and applied in the wider
context of the constitutional law of the UK. Accordingly, although no-one can
doubt the importance of EU law, the effect given to it by the 1972 Act has not
altered any fundamental constitutional principle in respect of the
identification of sources of law.
229.
The majority of the court respond that this analysis is unrealistic.
Although it is accepted that the effect of EU law in domestic law is dependent
on the 1972 Act, they argue that for EU law to cease to have effect in our
domestic law would be a major change in the UK’s constitution. As I understand
it, the argument is concerned with the effect of the 1972 Act. Whether the 1972
Act has that effect depends on its interpretation, which simply takes one back
to the issues discussed at paras 179-214 above.
230.
A further reason for rejecting the argument that the 1972 Act created a
new source of law, which cannot be revoked without further legislation, is one
that applies even if it is accepted that the 1972 Act created a new source of
law (in some sense or other). Since the 1972 Act gives effect to EU law only as
long as the Treaties apply to the UK, as explained at paras 189-204 above, that
source of law is inherently contingent on the UK’s continued membership of the
EU. EU law’s ceasing to have effect as a result of the UK’s withdrawal from the
Treaties is something which follows from the 1972 Act itself, and does not
require further legislation.
The analogy with the De Keyser case
231.
Although the majority judgment does not adopt the Miller claimants’
argument based on a supposed analogy with the De Keyser case, it is
nevertheless necessary to address it. As explained earlier, that case
established that where Parliament has regulated a matter by statute, the Crown
cannot have recourse to a prerogative power in respect of the same matter. The
argument by analogy asserts that, since notification under article 50 will
eventually render the 1972 Act redundant, it follows that notification cannot
be given in the exercise of prerogative powers. I am unable to accept that
argument, for a number of reasons.
232.
First, the De Keyser principle denies that prerogative power can
be exercised where a parallel statutory scheme exists. It does not follow from
that principle that a prerogative power cannot be exercised where the eventual
consequence will be that a statutory provision will cease to have a practical
application. The latter proposition cannot be derived from De Keyser, but
must be derived from some other source. The only obvious candidate is
Parliament’s intention in enacting the statutory provisions in question: an
intention, it has to be argued, to impose a limitation on the exercise of the
prerogative power. That simply takes one back to the argument as to whether an
intention to strip the Crown of its prerogative powers in respect of adherence
to the EU treaties can be derived from the 1972 Act: an argument which was
addressed at paras 201-204 above.
233.
Secondly, the 1972 Act does not, in any event, regulate withdrawal from
the EU: it recognises the existence of article 50, as explained in paras 198-202
above, but it says nothing about how or by whom a decision to invoke article 50
should be taken.
234.
Thirdly, the difference between the present situation and that with
which the De Keyser principle is concerned is also evident at the level
of remedies. In De Keyser itself, the remedy was a declaration that the
owners were entitled to compensation under the statutory scheme. The remedy
flowed from the logic of the principle: Ministers were obliged to comply with the
statutory scheme. No comparable remedy can be granted in the present case,
since there is no statutory scheme governing the operation of article 50.
The Rees-Mogg case
235.
Finally, in relation to the Miller claimants’ arguments, it should be
noted that this is not the first time that the courts have had to address these
arguments. In R v Secretary of State for Foreign Affairs, Ex p Rees-Mogg,
one of counsel’s arguments in support of a challenge to the ratification of the
Maastricht Treaty was recorded by Lloyd LJ as follows:
“He submits that by ratifying the
Protocol on Social Policy, the Government would be altering Community law under
the EEC Treaty ... It is axiomatic that Parliament alone can change the law. Mr
Pannick accepts, of course, that treaties are not self-executing. They create
rights and obligations on the international plane, not on the domestic plane.
He accepts also that the treaty-making power is part of the Royal Prerogative
... But the EEC Treaty is, he says, different. For section 2(1) of the European
Communities Act 1972 provides ...
If the Protocol on Social Policy
is ratified by all member states, it will become part of the EEC Treaty, which
is one of the Treaties referred to in section 2(1): see the definition of ‘the
Treaties’ in section 1(2) of the Act of 1972. Accordingly the Protocol will
have effect not only on the international plane but also, by virtue of
section 2(1) of the Act of 1972, on the domestic plane as well. By enacting
section 2(1), Parliament must therefore have intended to curtail the
prerogative power to amend or add to the EEC Treaty. There is no express
provision to that effect. But that is, according to the argument, the necessary
implication ... Where Parliament has by statute covered the very same
ground as was formerly covered by the Royal Prerogative, the Royal
Prerogative is to that extent, by necessary implication, held in
abeyance: see Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508; Laker Airways Ltd v Department of Trade [1977] QB 643, 718,720, per
Roskill LJ.” (p 567)
So one sees here the same arguments: that the prerogative
power in relation to treaties cannot be used to alter rights in domestic law;
that the effect of section 2(1) of the 1972 Act is to transform rights arising
under the EU treaties into rights in domestic law; that section 2(1) therefore
impliedly curtailed the prerogative power in relation to the EU treaties; and
the supposed analogy with the De Keyser principle.
236.
The Divisional Court rejected this argument:
“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 of the Act of 1978. Indeed, as was pointed out,
if the Crown’s treaty-making power were impliedly excluded by section 2(1) of
the Act of 1972, section 6 of the Act of 1978 would not have been necessary.
There is in any event insufficient ground to hold that Parliament has by
implication curtailed or fettered the Crown’s prerogative to alter or add to
the EEC Treaty.” (p 567)
The court also rejected the challenge on the basis that
the protocol in question was not, in any event, one of “the Treaties” to which
the 1972 Act applied (p 568). Contrary to counsel’s submission in the present
case, it is plain that these two reasons for rejecting the challenge to
ratification were independent of one another. The first reason was that section
2(1) did not impliedly curtail the Crown’s treaty-making power. The second was
that the protocol in question did not in any event fall within the ambit of
section 2(1).
237.
I agree with the Divisional Court’s reasoning in the passage which I have
cited, and in particular with the final sentence: even apart from the inference
which might be drawn from examples of express provisions restricting the
exercise of prerogative powers in relation to EU law, there is in any event
insufficient ground to hold that Parliament has by implication curtailed or
fettered the Crown’s prerogative powers in relation to the Treaties.
What if there had been no referendum, or a vote to remain?
238.
Finally, in relation to the Miller appeal, it is argued by the majority
at para 91 that the Secretary of State’s contentions cannot be correct since,
if they were, it would have been open to Ministers to invoke prerogative powers
to withdraw from the EU even if there had been no referendum, or indeed even if
any referendum had resulted in a vote to remain.
239.
There are two answers to this point. First, it does not necessarily follow
from my conclusions that Ministers could properly have invoked article 50
whenever they pleased, or, more specifically, in the event of a vote to remain.
As Lord Carnwath makes clear at para 266 below, there has been no discussion in
this appeal of the question whether there might be any circumstances in which
the exercise of the prerogative power in question might be open to review, such
as if the referendum held under the 2015 Act had resulted in a vote to remain,
and I express no view on that point.
240.
Secondly, and more fundamentally, controls over the exercise of
ministerial powers under the British constitution are not solely, or even
primarily, of a legal character, as Lord Carnwath explains in his judgment.
Courts should not overlook the constitutional importance of ministerial
accountability to Parliament. Ministerial decisions in the exercise of
prerogative powers, of greater importance than leaving the EU, have been taken
without any possibility of judicial control: examples include the declarations
of war in 1914 and 1939. For a court to proceed on the basis that if a prerogative
power is capable of being exercised arbitrarily or perversely, it must necessarily
be subject to judicial control, is to base legal doctrine on an assumption
which is foreign to our constitutional traditions. It is important for courts
to understand that the legalisation of political issues is not always
constitutionally appropriate, and may be fraught with risk, not least for the
judiciary.
Conclusion in relation to the Miller appeal
241.
For all the foregoing reasons, I would have allowed the Secretary of
State’s appeal in the Miller case.
The Northern Irish cases
242.
Given my disagreement with the decision of the majority of the court as
to the necessity for an Act of Parliament before article 50 can be invoked, it
follows that I would also have dealt with the devolution issues raised in the
Northern Irish cases differently. So far as those cases raise issues which are
distinct from those arising in the Miller appeal, however, I agree with the way
in which the majority have dealt with them. Nothing in the Northern Ireland Act
bears on the question whether the giving of notification under article 50 can
be effected under the prerogative or requires authorisation by an Act of Parliament.
More specifically, neither section 1 nor section 75 of the Northern Ireland Act
has any relevance in the present context. Nor does a political convention, such
as the Sewel Convention plainly is in its application to Northern Ireland, give
rise to a legally enforceable obligation.
LORD CARNWATH:
(dissenting)
243.
For the reasons given by Lord Reed, I would have allowed the appeal by
the Secretary of State in the main proceedings. In view of the importance of
the case, and the fact that we are differing from the Divisional Court and the
majority in this court, I shall add some comments of my own from a slightly
different legal perspective. I agree with the majority judgment in respect of
the Northern Irish cases and the other devolution issues.
Constitutional principles
244.
At the heart of the case is the classic statement of principle by Lord
Oliver in the Tin Council case (JH Rayner (Mincing Lane) Ltd v
Department of Trade and Industry [1990] 2 AC 418):
“… as a matter of the
constitutional law of the United Kingdom, the Royal Prerogative, whilst it
embraces the making of treaties, does not extend to altering the law or
conferring rights upon individuals or depriving individuals of rights which
they enjoy in domestic law without the intervention of Parliament …” (Lord
Oliver pp 499E-500D)
245.
In the Tin Council case Lord Oliver was speaking only of the
“making of treaties”, not withdrawal. Lord Templeman had earlier made clear
that the prerogative enables the Government to “negotiate, conclude, construe,
observe, breach, repudiate or terminate a treaty …” (p 476F-H). However, there
was no discussion of how the classic statement might need modification or
development in the context of termination or withdrawal. In principle the same
basic rule should apply. Just as the Executive cannot without statutory
authority create new rights or obligations in domestic law by entering into a
treaty, so it cannot by termination of a treaty take away rights or obligations
which currently exist. However, that tells one nothing about the process by
which this result is to be achieved, nor at what stage of that process the
intervention of Parliament is required.
246.
Precedents are hard to find. Counsel have taken us on an interesting
journey through cases and legal sources from four centuries and different parts
of the common law world. The only example we were shown of withdrawal from a
treaty was a recent decision of the Canadian Federal Court: Turp v Ministry
of Justice & Attorney General of Canada 2012 FC 893. That was an
unsuccessful challenge by the executive to the use of its prerogative powers to
withdraw from the Kyoto Protocol on Climate Change, against the background of a
statute (passed against the opposition of government) requiring the preparation
of plans giving effect to the Protocol. On its face it is a striking example of
the use of the prerogative to frustrate the apparent intention of Parliament as
expressed in legislation. However, the authority is of limited assistance in
the present context, since it had been held in a previous case (Friends of
the Earth v Canada (Governor in Council), 2008 FC 118) that the obligations
under the statute were not justiciable in the domestic courts.
247.
In the end the search through the authorities tells one little that is
not sufficiently expressed by the classic rule. It also confirms the lack of
any direct precedent for withdrawal from a treaty previously given effect in
domestic law, let alone one which has played such a vital part in the
development of our laws over more than 40 years. However, lack of precedent is
not a reason for inventing new principles, nor is there a need to do so. The
existing principles correctly applied provide a clear and coherent framework
for effective resolution of all the competing considerations, including the
referendum result.
The balance of power
248.
In considering that framework it is important to recognise the
sensitivity in our constitution of the balance between the respective roles of
Parliament, the Executive and the courts. The Divisional Court saw this principally
in binary terms: the Executive versus Parliament. Under the general heading,
“the sovereignty of Parliament and the prerogative powers of the Crown”, they
referred on the one hand to “the most fundamental rule that the Crown in
Parliament is sovereign” (para 20), and on the other to the “general rule” that
“the conduct of international relations and the making and unmaking of
treaties” are “matters for the Crown in the exercise of its prerogative powers”
(para 30), the balance between the two being as explained by Lord Oliver in the
Tin Council case (paras 32-33).
249.
Although the Tin Council principles as such are not in doubt,
they are only part of the story. It is wrong to see this as a simple choice
between Parliamentary sovereignty, exercised through legislation, and the
“untrammelled” exercise of the prerogative by the Executive. Parliamentary
sovereignty does not begin or end with the Tin Council principles. No
less fundamental to our constitution is the principle of Parliamentary
accountability. The Executive is accountable to Parliament for its exercise of
the prerogative, including its actions in international law. That account is
made through ordinary Parliamentary procedures. Subject to any specific
statutory restrictions (such as under the Constitutional Reform and Governance
Act 2010), they are a matter for Parliament alone. The courts may not inquire
into the methods by which Parliament exercises control over the Executive, nor
their adequacy.
The FBU case
250.
Defining the proper boundaries between the respective responsibilities
of Parliament, the Executive and the courts lay at the heart of the dispute in
the FBU case (R v Secretary of State for the Home Department Ex p
Fire Brigades Union [1995] 2 AC 513). That case concerned statutory provisions
(under the Criminal Justice Act 1988) providing for compensation for criminal
injuries, intended to replace a previous non-statutory scheme established under
the prerogative. Section 171 provided that the new scheme should come into
force on “such day as the Secretary of State may by order … appoint”. No such
date was appointed, but instead after some years the Secretary of State
announced that a new non-statutory scheme would be introduced, which was
inconsistent with the scheme provided for by the Act. The House of Lords held
by 3-2 that this action was an abuse of power and so unlawful. In the leading
judgment Lord Browne-Wilkinson noted that the new scheme was to be brought into
effect -
“… at a time when Parliament has
expressed its will that there should be a scheme based on the tortious measure
of damages, such will being expressed in a statute which Parliament has neither
repealed nor (for reasons which have not been disclosed) been invited to
repeal.
…, it would be most surprising if,
at the present day, prerogative powers could be validly exercised by the
executive so as to frustrate the will of Parliament expressed in a statute and,
to an extent, to pre-empt the decision of Parliament whether or not to continue
with the Statutory scheme even though the old scheme has been abandoned. It is
not for the executive … to state as it did in the White Paper (paragraph 38)
that the provisions in the Act of 1988 ‘will accordingly be repealed when a
suitable legislative opportunity occurs.’ It is for Parliament, not the
executive, to repeal legislation …” (p 552D-E)
He concluded:
“By introducing the tariff scheme
he debars himself from exercising the statutory power for the purposes and on
the basis which Parliament intended. For these reasons, in my judgment the
decision to introduce the tariff scheme at a time when the statutory provisions
and his power under section 171(1) were on the statute book was unlawful and an
abuse of the prerogative power.” (p 554G)
The minority, by contrast, regarded the majority’s decision
(in Lord Keith’s words - p 544) as “a most improper intrusion into a field
which lies peculiarly within the province of Parliament”.
251.
In a recent article (A dive into deep constitutional waters: article
50, the Prerogative and Parliament (2016) 79(6) MLR 1064-1089), Professor
Gavin Phillipson considers some lessons from that decision for the present
case. As he points out (ibid p 1082), the apparently fundamental
difference of approach between majority and minority came down ultimately to a
narrow issue of statutory construction of section 171: whether the section
imposed no duty owed to the public (p 544F per Lord Keith), or rather, as the
majority thought (p 551D, per Lord Browne Wilkinson), it imposed a continuing
obligation on the Secretary of State to consider whether to bring the statutory
scheme into force, which was frustrated by implementation of the inconsistent
non-statutory scheme.
252.
Professor Phillipson also draws attention to the important observations
by Lord Mustill on the balance between the three organs of the state, and in
particular the means by which Parliament exercises control of the Executive,
not restricted to legislative control. Although stated in a minority judgment,
the underlying principles are not I believe controversial. Lord Mustill said:
“It is a feature of the peculiarly
British conception of the separation of powers that Parliament, the executive
and the courts each have their distinct and largely exclusive domain.
Parliament has a legally unchallengeable right to make whatever laws it thinks
right. The executive carries on the administration of the country in accordance
with the powers conferred on it by law. The courts interpret the laws, and see
that they are obeyed. This requires the courts on occasion to step into the
territory which belongs to the executive, not only to verify that the powers
asserted accord with the substantive law created by Parliament, but also, that
the manner in which they are exercised conforms with the standards of fairness
which Parliament must have intended. Concurrently with this judicial function Parliament
has its own special means of ensuring that the executive, in the exercise of
delegated functions, performs in a way which Parliament finds appropriate. Ideally,
it is these latter methods which should be used to check executive errors and
excesses; for it is the task of Parliament and the executive in tandem,
not of the courts, to govern the country …” (p 567D-F, emphasis added)
253.
Lord Mustill went on to comment on the development over the previous 30
years of court procedures to fill gaps where the exercise of such “specifically
Parliamentary remedies” has been perceived as falling short, and “to avoid a
vacuum in which the citizen would be left without protection against a misuse
of executive powers”. He thought these judicial developments were welcome but
not without risks:
“As the judges themselves
constantly remark, it is not they who are appointed to administer the country.
Absent a written constitution much sensitivity is required of the
parliamentarian, administrator and judge if the delicate balance of the
unwritten rules evolved (I believe successfully) in recent years is not to be
disturbed …” (p 567H)
254.
Professor Phillipson comments:
“… the British constitution works
most effectively when parliamentary and judicial forms of control and
accountability, rather than being framed as antagonistic alternatives, or
mutually exclusive directions of travel, work together, but with clearly
defined, differentiated and mutually complementary roles.” (p 1089)
255.
That observation is particularly pertinent having regard to the debate
which took place on the opposite side of Parliament Square on the last day of
the hearing in the Supreme Court. That led to the motion, passed by a large
majority of the House of Commons, the terms of which have been set out by Lord
Reed (para 163). In particular, it recognised that it is “Parliament’s
responsibility to properly scrutinise the Government while respecting the
decision of the British people to leave the European Union”, and ended by
“call(ing) on the Government to invoke article 50 by 31 March 2017”. Of course
the House of Commons is not the same as “the Queen in Parliament”, whose will
is represented exclusively by primary legislation. However, the motion lends
support to the view that, at least at this initial stage of service of a notice
under article 50(2), the formality of a Bill is unnecessary to enable
Parliament to fulfil its ordinary responsibility for scrutinising the
government’s conduct of the process of withdrawal.
Application of the principles to the present case
256.
The logical starting point for consideration of the present case is the
power which is in issue: that is, the power under article 50 of the Lisbon
treaty to initiate the procedure for withdrawal by a decision in accordance
with our “constitutional requirements”, followed by service of a notice. The
existence of that power in international law is not in doubt. The issues for
the court are, first, who has the right under UK constitutional principles to
exercise it, and, secondly, subject to what constitutional requirements. As to
the first, under Tin Council principles the position is clear. In the
absence of any statutory provision to the contrary, the power to make or
withdraw from an international treaty lies with the Executive, exercising the
prerogative power of the Crown. As to the second, it is necessary to consider
whether that power is subject to any restrictions by statute, express or
implied, or in the common law.
257.
In agreement with Lord Reed, and for the same reasons, I find no such
restrictions in the EU statutes. I agree with Mr Eadie that this issue must be
considered by reference to the statutory scheme as it exists at the time the
power in question is to be exercised. The 1972 Act of course provided the
framework for what followed. But I find it illogical to search in that Act for
a presumed Parliamentary intention in respect of withdrawal, at a time when the
treaty contained no express power to withdraw, and there was no reason for
Parliament to consider it. The 1972 Act did not remove the Crown’s
treaty-making prerogative in respect of European matters, whether expressly or
by implication (as under the De Keyser principle: majority judgment para
48). No-one doubts the power of the Executive in 2008 to enter into the Lisbon
Treaty, including article 50.
258.
The critical issue is how Parliament dealt with that matter for the
purposes of domestic law. In the 2008 Act Parliament recognised the Lisbon
treaty (including article 50) by its inclusion in the treaties listed in
section 1 of the 1972 Act. Thereafter it became (by virtue of 1972 Act section
2(1)) part of the statutory framework “in accordance with” which, and therefore
subject to which, any rights and obligations derived from EU law by virtue of
that Act were to be enjoyed in domestic law. Unlike other powers in the treaty,
the 2008 Act did not impose any restriction on the exercise of article 50 by
the Executive. That position was confirmed by the 2011 Act, which made specific
reference to article 50(3) but placed no restriction on article 50(2). There
the matter rests today.
259.
Turning to the common law, the Tin Council rule is simple and
uncontroversial: the prerogative does not extend “to altering the law or
conferring rights upon individuals or depriving individuals of rights which
they enjoy in domestic law without the intervention of Parliament”. Judged by
that test the answer again is clear. Service of an article 50(2) notice will
not, and does not purport to, change any laws or affect any rights. It is
merely the start of an essentially political process of negotiation and
decision-making within the framework of that article. True it is that it is
intended to lead in due course to the removal of EU law as a source of rights
and obligations in domestic law. That process will be conducted by the
Executive, but it will be accountable to Parliament for the course of those
negotiations and the contents of any resulting agreement. Furthermore, whatever
the shape of the ultimate agreement, or even in default of agreement, there is
no suggestion by the Secretary of State that the process can be completed
without primary legislation in some form.
260.
This analysis was in substance adopted by Maguire J in the McCord proceedings,
in line with the submissions of the Attorney General for Northern Ireland
(repeated in this court). He said:
“In the present case, it seems to
the court that there is a distinction to be drawn between what occurs upon the
triggering of article 50(2) and what may occur thereafter. As the Attorney
General for Northern Ireland put it, the actual notification does not in itself
alter the law of the United Kingdom. Rather, it is the beginning of a process
which ultimately will probably lead to changes in United Kingdom law. On the
day after the notice has been given, the law will in fact be the same as it was
the day before it was given. The rights of individual citizens will not have
changed - though it is, of course, true that in due course the body of EU law
as it applies in the United Kingdom will, very likely, become the subject of
change. But at the point when this occurs the process necessarily will be one
controlled by parliamentary legislation, as this is the mechanism for changing
the law in the United Kingdom.” (para 105)
261.
The Divisional Court (para 17) took a different approach. They in effect
adopted the analysis proposed by Lord Pannick, taking account of the agreed
(albeit possibly controversial) assumption that the article 50(2) notice is
irrevocable. On that footing, even if it has no immediate effect, it will lead
inexorably to actual withdrawal at latest two years later (subject to agreement
to defer). Lord Pannick drew the analogy of a trigger being pulled (written
case para 11-12):
“… it is the giving of the notice
which triggers the legal effects under article 50(3). Those effects are that
once notification is given, ‘[t]he Treaties shall cease to apply to the state
in question’, from the date of a withdrawal agreement, or - if no such
agreement is reached - at the latest within two years from notification, unless
an extension of time is unanimously agreed by the European Council and the
member state concerned. Notification is … the pulling of the trigger which
causes the bullet to be fired, with the consequence that the bullet will hit
the target and the Treaties will cease to apply.”
262.
Lord Pannick’s trigger/bullet analogy is superficially attractive, but
(with respect) fallacious. A real bullet does not take two years to reach its
target. Nor is its progress accompanied by an intense period of negotiations
over the form of protection that should be available to the victim by the time
it arrives. The treaties will indeed cease to apply, and domestic law will
change; but it is clearly envisaged that the final form of the changes will be
governed by legislation. As the Secretary of State has explained, the intention
is that the legislation will where possible reproduce existing European-based
rights in domestic law, but otherwise ensure that there is no legal gap.
263.
Although there is no evidence from any government witness on the
intended role of Parliament, we were shown without objection or contradiction
the statement made by the Secretary of State to Parliament on 10 October 2016
(Hansard Vol 615). Having described the “mandate” for Britain to leave the European
Union as “clear, overwhelming and unarguable”, he explained the government’s
plans for a “great repeal Bill”:
“We will start by bringing forward
a great repeal Bill that will mean the European Communities Act 1972 ceases to
apply on the day we leave the EU …
The great repeal Act will convert
existing European Union law into domestic law, wherever practical. That will
provide for a calm and orderly exit, and give as much certainty as possible to employers,
investors, consumers and workers …
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 must act to ensure there is no black hole in our statute
book. It will then be for this House - I repeat, this House - to consider
changes to our domestic legislation to reflect the outcome of our negotiation
and our exit, subject to international treaties and agreements with other
countries and the EU on matters such as trade …”
264.
On the assumption that such a Bill becomes law by the time of
withdrawal, there will be no breach of the rule in its classic form. The extent
to which existing laws are changed or rights taken away will be determined by
the legislation. Ultimately of course that result depends on the will of
Parliament; it is not in the gift of the executive. But there is no basis for
making the opposite assumption. Lord Pannick’s argument in effect requires the
classic rule to be reformulated: “the prerogative does not extend to any act
which will necessarily lead to the alteration of the domestic law, or of
rights under it, whether or not that alteration is sanctioned by Parliament”.
We were shown no authority to support a rule as so stated, nor any principled
basis for the court to invent it. In any event, that process, like the service
of the article 50 notice, will be subject to Parliamentary scrutiny in whatever
way Parliament chooses. It will be for Parliament and the Executive acting in
partnership to determine the timing and content of the legislative programme.
Pre-empting the will of Parliament
265.
One possible answer to the analysis in the previous paragraph is that it
would involve the Executive unlawfully “frustrating” or “pre-empting” the will
of Parliament. This point is touched on in the majority judgment by reference
in particular to the Lord Browne-Wilkinson’s statements in the FBU case
(see para 250 above). They are said to establish the principle that ministers
cannot “frustrate” the purpose of a statute “for example by emptying it of
content or preventing its effectual operation”; and that it is -
“… inappropriate for ministers to
base their actions (or to invite the court to make any decision) on the basis
of an anticipated repeal of a statutory provision as that would involve
ministers (or the court) pre-empting Parliament’s decision whether to enact
that repeal.” (majority judgment para 51)
266.
As I understand the majority judgment, however, this line of argument
does not ultimately form part of their reasoning, in my view rightly so. In the
first place, the FBU case was about abuse, not absence, of power.
There was no doubt as to the existence of the prerogative power. But it was
held to be an abuse to use it for a purpose inconsistent with the will of
Parliament, as expressed in a statute which it had neither repealed nor
been invited to repeal. Such issues do not arise in this case. The Miller
respondents base their case unequivocally on absence of a prerogative power to
nullify the statutory scheme set up by the 1972 Act, rather than abuse (see
Lord Pannick’s response to Lord Reed: Day 2 Transcript, p 158, lines 8-25).
267.
Further, Lord Browne-Wilkinson was not purporting to lay down any
general principle about the relevance of future legislation in relation to the
exercise of the prerogative. His comments were directed to the facts of the
particular case, in which the new scheme was being introduced without any
reference at all to Parliament. Similar arguments in the present case would
have to be seen in a quite different context, which (as Lord Pannick accepts)
would include the 2015 Act and the referendum result. It is one thing, as in
the FBU case, to use the prerogative to introduce a scheme which is
directly contrary to an extant Act, and which Parliament has had no chance to
consider. It is quite another to use it to give effect to a decision the manner
of which has been determined by Parliament itself, and in the implementation of
which Parliament will play a central role. In such circumstances talk of frustrating
or pre-empting the will of Parliament would be wide of the mark. Conversely, it
would be wrong to assume (as the majority appears to do: para 91) that the
courts would necessarily have been powerless in the (politically inconceivable)
event of the Executive initiating withdrawal entirely of its own motion, or
even in defiance of a referendum vote to remain.
Protection of individual interests
268.
I would not wish to leave the case without acknowledging the important
submissions made by the other respondents and interveners, particularly as to
the scale and significance of the interests which will be affected by
withdrawal. It is not clear, however, how a requirement for statutory authority
for the article 50(2) notice will do anything to safeguard those interests, nor
indeed to advance the process of Parliamentary scrutiny which will ultimately
be critical to their protection.
269.
I take as representative the cases for the third and fourth respondents,
presented by Ms Mountfield QC and Mr Gill QC. Their submissions provide vivid
illustrations of the variety of ways in which individual and group interests
will be profoundly affected by implementation of the decision to leave the EU.
Ms Mountfield for example provides a detailed breakdown of “fundamental” and
“non-replicable” EU citizenship rights. The list starts with the “fundamental
status” of EU citizenship (Citizens’ Directive 2004/38/EC preamble), leading to
more specific rights, such as the right to move, reside, work and study
throughout the member states, the right to vote in European elections, the
rights to diplomatic protection, and the right to equal pay, and to
non-discriminatory healthcare free at the point of use. She categorises the
government’s case as an assertion of -
“untrammelled prerogative power to do away with the entire
corpus of European law rights currently enjoyed under UK law, and render a
whole suite of constitutional statutes meaningless, without any Parliamentary
authority in the form of a statute.”
While there is no reason to question her account of the
profound effect of the prospective changes, I do not for the reasons already
given accept that this can be describe as “untrammelled” use of executive
power, nor that the control of Parliament will be improperly bypassed. Nor does
she explain how that impact will be mitigated by a statute which does no more
than authorise service of the notice.
270.
Similar arguments are made by Mr Gill for the fourth respondents (the AB
parties). They are representative, among others, of the very large numbers of
EEA nationals and their children living in this country, whose rights to
continued residence will be threatened unless adequate arrangements are made to
protect them. Mr Gill refers in particular to the important right under the
Citizens’ Directive for those who have lived in the UK for five years to apply
for citizenship in the following year, a right which will be lost on
withdrawal. Section 7 of the Immigration Act 1988 provides that a person shall not
require leave to enter or remain in the United Kingdom “in any case in which he
is entitled to do so by virtue of an enforceable EU right”.
271.
Typical is Mrs KK, a Polish national resident and working here since
2014, married to a third country national, with a Polish national child born in
the UK in 2015. She feels “in a complete state of limbo” having received no
assurance from the Secretary of State as to what her status will be during and
after the withdrawal negotiations, nor how her husband and child will be
affected. Such people, says Mr Gill, will have made life-changing decisions and
moved permanently to the UK with the ultimate intention of acquiring permanent
residence. They may also find themselves exposed to criminal liability under
the Immigration Act 1971 if their status is removed. Mr Gill recognises that
Parliament may prior to actual withdrawal put in place a statutory protection
mechanism; but that depends on the will of Parliament, which, he says, the
Secretary of State cannot lawfully pre-empt. It is, he submits, a misuse of the
prerogative to “foist” such a situation on Parliament; the rights to remain
“must be addressed by Parliament before the giving of the article 50(2)
notice.”
272.
There are two problems with that submission. First, it is difficult to
talk of the Executive “foisting” on Parliament a chain of events which flows
directly from the result of the referendum which it authorised in the 2015 Act.
Secondly, however desirable it would be for issues of detail such as those
affecting his clients to be addressed at this stage, it is wholly inconsistent
with the structure of article 50. That assumes the initiation of the process by
a simple notice under article 50(2), to be followed by detailed negotiations
leading if possible to an agreement on the terms of withdrawal. The details of
the protections available for Mr Gill’s clients must depend, at least in part,
on the outcome of those negotiations.
273.
No doubt for this reason such an extreme argument is not adopted by the
other respondents. They accept that, at this stage of the article 50 process,
they cannot reasonably expect anything more than bare statutory authorisation
for the service of the notice. That is realistic. But it also underlines the
point that successful defence of the Divisional Court’s order will do nothing
to resolve the many practical issues which will need to be addressed over the
coming period, nor to protect the rights of those directly affected. Those
problems, and the need for Parliament to address them, will remain precisely
the same with or without statutory authorisation for the article 50 notice. If
that is what the law requires, so be it. But some may regard it as an exercise
in pure legal formalism.
Conclusion
274.
Shortly after the 1972 Act came into force, Lord Denning famously spoke
of the European Treaty as “like an incoming tide. It flows into the estuaries
and up the rivers. It cannot be held back …” (Bulmer Ltd v Bollinger [1974] Ch 401, 418F). That process is now to be reversed. Hydrologists may be able to
suggest an appropriate analogy. On any view, the legal and practical challenges
will be enormous. The respondents have done a great service in bringing these
issues before the court at the beginning of the process. The very full debate
in the courts has been supplemented by a vigorous and illuminating academic debate
conducted on the web (particularly through the UK Constitutional Law Blog
site). Unsurprisingly, given the unprecedented nature of the undertaking there
are no easy answers. In the end, in respectful disagreement with the majority,
I have reached the clear conclusion that the Divisional Court took too narrow a
view of the constitutional principles at stake. The article 50 process must and
will involve a partnership between Parliament and the Executive. But that does
not mean that legislation is required simply to initiate it. Legislation will
undoubtedly be required to implement withdrawal, but the process, including the
form and timing of any legislation, can and should be determined by Parliament
not by the courts. That involves no breach of the constitutional principles
which have been entrenched in our law since the 17th century, and no threat to
the fundamental principle of Parliamentary sovereignty.
LORD HUGHES:
(dissenting)
275.
Some observers, who have not been provided with the very detailed arguments
which have been debated before us (or the something over 20,000 pages of
documents which supported those arguments) might easily think that the
principal question in this case is: “Does the 2016 referendum result not
conclude the issue, and mean that the country is bound to leave the EU?” In
fact, that is not the principal question. No-one suggests that the referendum
by itself has the legal effect that a Government notice to leave the EU is made
lawful. Specifically, that is not the contention of the Government, speaking
through the Secretary of State for exiting the EU. The referendum result
undoubtedly has enormous political impact, but it is not suggested by the
Government that it has direct legal effect.
276.
The principal question in this case is not whether the UK ought or ought
not to leave the EU. That is a matter for political judgment, which is where
the referendum comes in. Courts do not make political judgments. The question
in this case is not whether, but how, the UK may lawfully set
about leaving the EU, if that is the political decision made. It is about the
legal mechanics of leaving.
277.
As the foregoing judgments show, this case is capable of stimulating
discussion on a number of legally interesting topics. There are also
supplementary questions arising out of the legal positions of Scotland,
Northern Ireland and Wales. But, at some risk of over-simplifying, the main
question centres on two very well understood constitutional rules, which in
this case apparently point in opposite directions. They are these:
Rule 1
the executive (government) cannot change law made by Act of
Parliament, nor the common law;
and
Rule 2
the making and unmaking of treaties is a matter of foreign
relations within the competence of the government.
278.
Nobody questions either of these two rules. Mrs Miller relies on the
first. The government relies on the second. The government contends that Rule 2
operates to recognise its power, as the handler of foreign relations, to unmake
the European Treaties. Mrs Miller contends that Rule 1 shows that the power to
handle foreign relations stops short at the point where UK statute law is
changed.
279.
Mrs Miller’s case is that because there was an Act of Parliament (the
European Communities Act 1972) to give effect to our joining the (then) EEC and
to make European rules part of UK law, there has to be another Act of
Parliament to authorise service of notice to leave. This is the effect, she
says, of Rule 1. Thus, she says, Rule 2 is true, but does not apply.
280.
The government’s case is that the European Communities Act 1972, which
did indeed make European rules into laws of the UK, will simply cease to
operate if the UK leaves. The Act was only ever designed to have effect whilst
we were members of the EU. It agrees that as a government it cannot alter the
law of the UK which statute has made, but it says that if it serves notice to
leave the EU, and in due course we leave, it would not be altering the statute;
the statute would simply cease to apply because there would no longer be rules
under treaties to which the UK was a party. Thus, it says, Rule 1 does not
apply and Rule 2 does.
281.
Which of these arguments is correct depends in the end on the true
reading of the European Communities Act 1972. Clearly, either reading is
possible. The majority judgment gives cogent expression to the conclusion that
it is Mrs Miller’s reading which is correct. For my part, for the reasons which
Lord Reed very clearly sets out, I would have preferred the view that this Act
was only ever to be operative for so long as the UK was a member of (first) the
EEC, and now the EU. It is not helpful, particularly because this is a minority
view, to repeat the analysis which Lord Reed expounds. I agree with his
judgment. In short, because of Rule 1 the Act was necessary to convert the UK’s
international obligations under the various European treaties into law with
domestic effect. Without the Act, those European rules would have had effect
between States at the international level but would not have been part of
domestic UK law and so would not have bound UK citizens individually. But the
Act is couched in terms which give legal effect to the obligations and rules which
arise under the treaties. If the UK leaves the EU, there are no longer any
treaties to which this country is a party. It seems to me to follow that the
Act will cease to import any of the rules which presently it does. The Act is
not changed; it does, however, cease to operate because there are no longer any
treaty rules for it to bite upon.
282.
Thus I would, for myself, have allowed the appeal of the Secretary of
State from the decision of the (English) Divisional Court. I agree that on
either view of the principal Miller appeal, the devolution questions raised
should all be answered “no”, for the reasons set out in the majority judgment. I
likewise agree with the majority’s treatment of the Sewel convention.
283.
It remains only to add that the arguments before us made it clear that
whatever the outcome of the Miller appeal, much the same legislative programme
will be required in Parliament, upon the UK’s departure from the EU, to deal
with the multifarious legal rules presently operative via the 1972 Act. The
issues before this court do not touch this exercise, which will be a matter in
any event for Parliament. The court is concerned only with the necessary
procedure for the service of an article 50 notice to leave.
