Live Blog: R (Miller & Anor) v Secretary of State for Exiting the European Union (Day 4)
08 Thursday Dec 2016
This is a live blog of the last day of the hearing of the “Brexit” appeal. Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts. Today’s live blog team comprises Anthony Fairclough (Matrix), Emma Boffey, Lisa Fox, and Diane Jerry (from CMS) as well as Cathryn Hopkins, Ryan Dolby-Stevens and Tom Pritchard (all from Olswang).
17.36 Day 4 Summary
Well that’s all folks! The hearing has now concluded, with no firm indication given as to when judgment is expected but a promise from Lord Neuberger to deliver it as soon as possible. Here is a quick round up of today’s submissions:
The final day of the appeal began with the Lord Advocate (the senior Scottish Law Officer, appearing on behalf of one of the interveners, the Scottish Government) concluding his submissions, which began late yesterday afternoon. The Lord Advocate’s key point is that the legislative consent convention – which normally requires the UK Parliament to seek the consent of the Scottish Parliament when legislating on “devolved matters” – is no longer merely a convention, but is now a statutory rule of law, as a result of its enshrinement in s 28 of the Scotland Act 2016. The Lord Advocate was pressed on this by the Justices and in particular, on the significance of this point, if there is no legal remedy in the event of breach of the rule. The Lord Advocate observed that, although the UK Parliament can simply ignore a refusal of consent, it is a fundamental constitutional requirement to seek it in the first place, which should be observed. The Lord Advocate’s position is that the legislative consent convention clearly constrains the power of the UK Parliament in relation to Scotland. The ultimate question posed by this issue for the Court is therefore, in the Lord Advocate’s submission, who has the power to change the laws of Scotland?
On behalf of the Welsh Government, Richard Gordon QC sought to argue that the “Dispensing Principle” – that prerogative must not be used to dispense with laws – holds, and therefore that if Article 50 notice was given by prerogative, statutory provisions in the Government of Wales Act 2006 (“2006 Act”) would be unlawfully dispensed. On this basis, the appeal must be refused. Gordon QC accepted the first respondent’s interpretation of the ECA 1972, but fielded several questions on the impact on his submissions if the Justices accepted that the ECA 1972 did not prevent the giving of Article 50 notice by prerogative. Was there anything in the 2006 Act that demonstrated that the prerogative would not be available? He argued that it was incorrect to rely on s 2 of the ECA 1972 to effect changes to law, without regard to the 2006 Act. Lastly, Gordon QC described the Sewel Convention as facilitating a legislative dialogue between Westminster and the relevant devolved legislature, in this case, the Welsh Assembly. He depicted it as a key part of the devolution machinery in place to deliver the incremental process of devolution across the kingdoms. He went on to invite the Justices to decide on the weight that should be given to the Convention and the Dispensing Principle in the context of triggering Article 50.
Helen Mountfield QC appeared on behalf of the crowd funded “People’s Challenge”, the Pigney respondents, opening with a rejection of the appellant’s assumption that the prerogative gives the government untrammeled power to change domestic law. She argued that the Government had confused two propositions:
- the concept of the prerogative power (whether there is a power to dispense with domestic law at all); and
- the extent of such a prerogative (cast so wide that the government has a power to change domestic law).
She explained that (ii) equated to the existence of a power which would affect citizens’ enjoyment of their rights.
Given that the prerogative has been eroded and narrowed over time, she argued that a historical consideration of the prerogative was necessary to answer the question whether a foreign relations prerogative existed at all. She then gave a whistle-stop tour of case law to support the contention that only Parliament can alter the law and that the executive may not vary domestic law or remove rights. She also commented that when modern day judges have considered (albeit it in passing) what would happen in the event of a withdrawal from the EU, they had agreed it would be a matter for Parliament, not the executive.
Helen Mountfield QC continued with her second point that triggering Article 50 will remove EU law rights, noting that those she represents consider their EU citizenship to be fundamental to their identity. She gave, as an example of a wider consequence of withdrawal from the EU, the Human Rights Act which she said it was probable the executive will dispense with. Turning to the 2015 Act, Helen Mountfield QC submitted that it had not revived the prerogative power; the Act contains no express language to that effect. There was nothing to suggest that withdrawal from the EU could take place without a statute, an Act of Parliament having been necessary when joining the UK.
Manjit Gill QC, representing the AB Parties, who include EEA nationals and children living in the UK whose right of residence will be removed or curtailed by the giving of notice under Article 50, made three broad submissions:
- The right to use the prerogative in the way contended for by the Government will drive “a coach and horses” through the fundamental rights of vulnerable classes of persons.
- It will also affect the rights of children.
- The Government’s flexible construction point is wrong and an unjustified attempt to discern in the 2015 Act an indication that Parliament intended to cede control.
Patrick Green QC gave submissions on behalf of the “Expat interveners”, arguing that triggering Article 50 is a “fundamental constitutional change” which requires an act of Parliament.
Finally, the court heard the Government’s submissions in reply. Speaking first was Lord Keen QC, who addressed this morning’s submissions on the devolution issues, particularly in relation to the Sewel Convention which he claims the respondents and interveners placed too much reliance on. Finally, James Eadie QC reiterated his submission that a distinction was to be drawn between amending the law of the land and simply exercising a prerogative power. Eadie QC, using the metaphor of a conduit pipe, says that whilst Parliament has control of the pipe it is the Government which controls what goes through the pipe. Finally, Eadie QC reiterated his point that a single line Act of Parliament would make no sense in the context in which Parliament has already ceded the question being asked of it to the people (by way of a referendum).
We will be posting more commentary about this case both pre- and post-judgment so if you’ve enjoyed our commentary over the past few days do subscribe to receive updates on new posts.
16:10: Lord Neuberger thanks all the court staff and lawyers for their hard work in bringing the case. A nod to the press also with the thanks for “all those inside and outside the Court who have been converting our legal discussions into a more accessible form for members of the public. “.
Lord Neuberger remarks: “It bears repeating that we are not being asked to overturn the result of the EU Referendum. The ultimate question in this case concerns the process by which that result can lawfully be brought into effect.”
Finally, Lord Neuberger states that the Justices will now take time to ensure the many arguments are given full and proper consideration, whilst noting an acute awareness that the case must be decided as soon as practicably possible and promising that the Justices will do their to achieve that. Court adjourned.
16:09: Eadie QC’s submissions end.
16:08: Lord Neuberger makes a point of correcting Eadie QC on a slightly loose use of language in respect of whether an Act of Parliament is required: “We are not requiring it, we are saying the law of this country requires it.”
15:57: Eadie QC discusses the possibility of a single line Act of Parliament, which he says created a difficulty for the respondents as it makes no sense in the context where Parliament has put that very question to the people by way of a referendum. The royal prerogative was created and exists for the purpose of giving effect to the referendum.
15:55: On the AV referendum, Eadie QC says that this needed provisions in legislation to work out what the consequences would be following the vote. Contrastingly, in this situation, (he says) one already has the freestanding power to give the Article 50 notice.
15:47: Eadie QC says that Parliament decided that if notice was given under Article 50 , the process was thereby commenced, with all the knock-on consequences that brings. He says that the idea that Parliament did not know that was the effect of an Article 50 notice “simply could not be sustained”. Parliament made provision for other things which required primary legislative authority – why would it not have expressly included Article 50 if that was its intention?
15:38: Eadie QC moves on to consider the subsequent legislation, which he says is “absolutely key” to the issues arising here. That legislation is “constitutional” just as ECA 1972 is.
15:33: Eadie QC on domestic rights: the ECA 1972 recognises rights of a very special kind, which are fundamentally contingent on our continued membership of the EU. Mountfield QC and Pannick QC promised to answer that feature of the ECA 1972, but neither did so.
15:30: Eadie QC goes through the legislative scheme, saying that the respondents’ case could only be successful if you “freeze the clock” in 1972.
15:24: Lord Neuberger – so it is right that statute creates the conduit pipe? Parliament says “we have control of the pipe, Government has control of what goes through the pipe”? Eadie QC: yes.
15:20: Eadie QC submits that Parliament set up a legislative scheme under the ECA 1972 by way that actions by the UK Government and those of other member states flow back to affect member states. The issue isn’t about saying that Government can use its prerogative in any way; it’s about what has Parliament done in this context. Eadie QC submits that if the Court finds that the prerogative cannot be used to make decisions on the international plane that affect domestic law, that this is a dangerous principle with serious consequences. Lord Kerr (massively paraphrased): but has Parliament has not given citizens of the UK rights by way of the ECA 1972, and therefore would have to be consulted in order for them to be taken away? Lord Reed seeks to assist Eadie QC by asking whether what he is saying that Parliament conferred rights conditional on the UK’s continuing membership of the EU. Eadie QC agrees.
15:10: Eadie QC submits that Parliament can control Government’s prerogative powers, and what legal effect can be attached to the exercise of those powers. There can be serious domestic impacts flowing from Government’s action on the international plane and Parliament does not have to subsequently intervene in respect of those impacts. Lord Reed refers to the position that EU law is the law of the land and the prerogative cannot be used to alter that. He asks if Eadie QC is saying that unlike the Dangerous Dogs Act 1991 (i.e. a domestic, act of the UK Parliament), EU law is not “the law of the land”. Eadie QC confirms that, and also Parliament has intervened in respect of EU law, see the ECA 1972 and legislative control. The Dangerous Dogs Act was introduced into the argument to show that Parliament has not intervened in respect of that legislation.
15:00: Eadie QC takes over. He wants to clarify that their case doesn’t assert a right to amend the Dangerous Dogs Act (a reference to the respondents’ submissions earlier in the week) or the power to alter the law of the land, or common law rights by exercise of the prerogative. The appellant does assert a power to notify under Article 50(2) notwithstanding that that will result in changes to domestic law. It is plain that Parliament can intervene (a word used deliberately) in a particular context to set up domestic law and to cater for its alteration as it sees fit. The Government is not denying its sovereignty to do that. The true question is the nature of the Parliamentary intervention that there has in fact been in this case, that is, has Parliament decided that prerogative power can be used to exercise Article 50(2)?
14:53: Lord Keen QC is discussing the political nature of the Smith Commission in Scotland that led to the Scotland Act and its interaction with the Sewel Convention.
14:46: Lord Keen QC names section 28.8 of the Sewel Convention as the language of “political judgement”. Lord Kerr prefers to refer to it as the language of “political undertaking” to which Lord Keen QC rephrases it as “a self-denying ordinance, expressed in qualified terms”.
14:42: Lord Keen QC advances his argument that the Scotland Act 2016 is too heavily relied upon by the respondent; the practice or dialogue between administrations changes from time to time.
14:36: Lord Keen QC addresses the Welsh arguments from this morning. He argues that if the Government is right about the ECA 1972, we need not look at the devolved legislation. Giving direct effect to new European regulations is a use of the prerogative avoiding the devolved legislature and effecting its competence.
14:31: Lord Keen QC is speaking first for the appellant.
14:30: Patrick Green QC’s closing argument is that s 18 of the European Union Act 2011 suggests that the basis for the rights to remain effective in domestic law is the ECA 1972 itself.
14:25: The Lords are questioning Patrick Green QC on the relevance of the European Union (Amendment) Act 2008.
14:20: Patrick Green QC cites the cases of Blackburn and Schindler as consistent with the understanding that Parliament would be the body responsible for leaving the European Union.
14:14: Patrick Green QC refers to the fact that Parliament specifically listed the relevant Treaties to which the ECA 1972 relates. Adding a new Treaty to s 1 of the ECA 1972 would require further primary legislation. Patrick Green refers to this as the “castle walls” argument (as opposed to the “Trojan Horse” argument).
14:09: Patrick Green QC wishes to investigate whether there was a relevant prerogative power at all and proper understanding of the legislation that follows 1972. Arguing further, Parliament has given its consent to the making of law by EU institutions to make law in the UK and this a “fundamental constitutional change”.
14:04: The afternoon session has just gotten underway and Patrick Green QC has 30 minutes to present submissions on behalf of the “Expat Interveners” (George Birnie and others).
13:08: The court adjourns and will resume at 14:00.
13:07: Manjit Gill QC concludes his submissions, noting that there is no reason why Parliament had “to say anything”; there was no reason why Parliament shouldn’t assume that the people of the country knew the law.
13:02: Manjit Gill QC refers to flexible constitution point and says appellant seems to want to drag out of the 2015 Act some indication that Parliament must have intended to concede control.
12:55: By giving notice under Article 50, a “coach and horses” will be driven through rights of EEA nationals and their families.
12:48: Manjit Gill QC makes opening point that there is no prerogative to dispense with law.
12:45: Helen Mountfield QC concludes case for the Pigney respondents. Manjit Gill QC opens his submissions on behalf of the AB Parties.
12:43: Is long established that Government cannot dispense with Parliamentary authority.
12:39: Helen Mountfield QC turns to the 2015 Act. If Parliament had intended referendum to have particular effect would have made clear.
12:34: If Government’s case is right, the executive could dispense with Human Rights Act 1998. Could technically be enforced, but in reality would be a “dead letter”.
12:25: Helen Mountfield QC explains that when modern day judges have even fleetingly considered what would happen in the event of a withdrawal from the EU, it would be a matter for Parliament. There are no dicta to the contrary.
12:23: Helen Mountfield QC – The silence of the statute books on this point – means that the prerogative cannot be used to change the law in the domestic sphere.
12:19: Disagrees that the McWhirter v Attorney General case shows that there is an untrammelled prerogative power as submitted by the appellant – a true reading shows that the prerogative cannot be used to change domestic law in the context of entering EU treaties.
12:12: “Strong line of authority to support the view that the executive may not vary domestic law or remove rights”.
12:10: Helen Mountfield QC runs through case law dating from 1610 to illustrate that only Parliament may alter the law.
12:05: disputes the appellant’s submission that the prerogative is so wide that it can dispense with law.
12:02: Helen Mountfield QC submits that the erosion of the royal prerogative over time, as described by Lord Bingham in Bancoult (No 2), contends that a historical analysis is required of the scope of the prerogative.
11:58: Helen Mountfield QC – two questions are asked: (i) the extent of the Treaty prerogative – whether there is a power to dispense with domestic law at all; and (ii) whether triggering Article 50 would change domestic law (contrary to the prohibition on dispensing with domestic law).
11:56: The approach of Pigney & Ors is to reject what they consider to be the appellant’s the false assumption that the prerogative extends to give the Government untrammelled power to change domestic law.
11:51: Helen Mountfield QC starts her submissions on behalf of the crowdfunded interested parties.
11:50: Richard Gordon QC concludes his submissions early.
11:49: Richard Gordon QC stresses that he is not asking the Justices to construe a statute, rather he is asking them to evaluate the weight to be given to the Sewel Convention, and the scope of the Dispensing Principle, in the context, of the seismic changes to be made.
11:44: Richard Gordon QC submits that the trajectory of devolution is an incremental process – this means that the devolution machinery, including the Sewel Convention is legally highly relevant in this process.
11:40: Richard Gordon QC – the Sewel Convention envisages a legislative dialogue between different legislatures: Westminster and the devolved legislature in question. If the prerogative can be used to short-circuit this dialogue, the common law approach to the scope of the prerogative should step in.
11:37: Richard Gordon QC’s last point before coming to the Sewel Convention – submits that it is incorrect to look at s 2 of ECA 1972 alone, so that everything else falls away.
11:34: Lord Mance – poses the point that you can have legislation that can be “switched on or switched off”.
11:30: Richard Gordon QC – “regarding devolved matters” can only sensibly mean regarding the competence of the Welsh Assembly in the case of Wales.
11:28: Having highlighted the provisions . . .
11.23: Lord Neuberger questioning whether the wording of the 2006 Act – particular s 108(6)(c) – assists his point, if they follow the appellant’s interpretation of the ECA 1972.
11:21: Richard Gordon QC now highlights some areas of the 2006 Act (s 108), where the Counsel General’s argument is that laws would be dispensed with if Article 50 notice were given by prerogative.
11:19: The Dispensing Principle goes beyond rights (the Divisional Court judgment was “rights, rights, rights”). Claims that the Government has accepted, but misunderstood and misapplied, it.
11:15: Richard Gordon QC – the 2006 Act provides a statutory mechanism to change primary legislation if there is a radical change to the Government of Wales’ legislative competence.
11:13: Lord Mance asking about the ECA 1972 and its interpretation – does the devolution legislation (the 2006 Act) make a difference? If you follow the appellant’s interpretation of the ECA 1972, what is there in the 2006 Act that demonstrates that the prerogative is not available.
11:10: Gordon QC says these appeals are really about “the proper distribution of power”. The 2015 Act has fulfilled its purpose, it cannot be revived to make it a normative statute – there’s nothing in it that says anything about prerogative powers.
11:08: Now turning to the Sewel Convention . . . “a Convention is a very important [constitutional] force. It is the glue – the only glue – that can hold an unwritten constitution together”.
11:00 Richard Gordon QC seeking to get back on track – inviting the Justices to agree on Lord Pannick’s interpretation of the ECA 1972, and the 2006 Act. But he holds that the De Keyser line of authority doesn’t come into play if we follow his Dispensing Principle analysis/framwork. De Keyser therefore is “analytically irrelevant”.
10:58: Lord Mance expressing confusion about the point being raised by the Counsel General’s printed case, and Richard Gordon QC’s submissions so far. Is a point about the devolution settlement being raised?
10:54: Returning briefly to his last propositions: 8) and 9) if the Counsel General is right that triggering article 50 will dispense with laws, then the Government must lose the appeal.
10:50: Lord Carnwath presses on “simple principle” that prerogative can’t be used to dispense with laws – why does one need to reformulate this?
10:46: “9 short propositions” about the Dispensing Principle: 1) this is a claim to a proposed prerogative power; 2) no dispute that there is power to make/unmake treaties; 3) certain prior constraints that apply to all prerogative powers; 4) fundamentally, to dispense with laws; 5) other constraints – including not to nullify rights, subvert statutory schemes; 6) where there is no existing prerogative power it has no power to abrogate those constraints: “a child of 6 could understand this point” ; 7) whether triggering article 50 dispenses with laws – for which, he refers to the Government of Wales Act 2006 (the 2006 Act) . . .
10:44: According to his printed case (on behalf of the Counsel General), Richard Gordon QC will seek to argue that the process of withdrawing from the EU must be done consistently with legal and constitutional requirements highly material to the devolution settlement. However, he states that he will provide a framework around the “Dispensing Principle” (that is prerogative cannot be used to dispense with laws).
10:43: The Lord Advocate says it would be “extraordinary” if the framers of the Union legislation had given powers to change the laws of Scotland to the Crown only and not to the Parliament. The constitution sets limits on the use of the prerogative and stops the UK Government making significant changes to the law of the land through the prerogative like this.
10:41: The Lord Advocate is now responding to the point made by the Advocate General for Scotland (Lord Keen of Elie QC) that there is no Bill currently before Parliament. The Lord Advocate says that any hypothetical bill would not simply be a change in scope of our relationship with the EU, but is very different indeed.
10:40: The Lord Advocate says that if he is wrong, the Court would be leaving to other constitutional actors, the question of whether the constitutional requirements of the UK include this convention.
10:37: In response to questioning from Lord Sumption on this point, the Lord Advocate says that it is a matter for the Court to determine the change in the status of the rule. But he accepts, following a follow-up question from Lord Hodge, that the Court cannot adjudicate on what is “normal”.
10:36: Lord Sumption notes that s 28 of the Scotland Act 2016 is unusual in that it is declaratory of a political intention. The Lord Advocate says that plainly the nature of the convention has changed into a rule of law.
10:35: The Lord Advocate is explaining some examples from the constitutional orders of British Virgin Islands and Gibraltar to support his interpretation.
10:32: Lord Reed, one of the Scottish Justices, is questioning the Lord Advocate on the practical significance of this issue. Lord Reed points out it all depends on whether a Bill of Parliament is required in the first place? The Lord Advocate agrees. He says this is all part of the current constitutional context in which the main question needs to be addressed.
10:31: The Lord Advocate repeats his point from yesterday afternoon that just because a Bill relates to a reserved matter does not mean that the legislative consent convention is not engaged. He cites the Scotland Act 2016 as an example of this.
10:30: The Lord Advocate says the legislative consent convention is important to the central question before the Court. He says it shows that an Act of Parliament is required to make the decision to withdraw under Article 50.
10:28: Lord Mance and Lady Hale are pressing the Lord Advocate on the point of the convention, if it has no legal sanction when not followed. Can the Court nevertheless intervene, then hand over to the politicians to determine whether this is a “normal” situation?
10:27: The convention constrains the power of the UK Parliament in relation to Scotland, says the Lord Advocate.
10:26: However, the Lord Advocates notes that it would bypass an important constitutional requirement of the Union. Who has the power to change the law of the land in Scotland?
10:23: If the Bill would engage the convention, the political actors at Westminster and Scottish Parliament should address whether or not the UK would legislate without the consent of the Scottish Parliament. In the face of a refusal of consent, there would be no legal sanction if the UK Parliament legislates without the Scottish Parliament’s consent.
10:22: The Lord Advocate says if there is a dispute on whether it is a “devolved matter”, it is constitutionally permissible for the Court to resolve the dispute. The Court can answer the question: is the convention engaged or not?
10:21: The Lord Advocate says the issue in this case is whether the legislative consent convention applies at all: whether a Bill to withdraw from the EU falls within the scope of the convention and whether it falls within the scope of a “devolved matter”.
10:20: First, the Lord Advocate says that as the principle of the legislative consent convention is now on the statute books, it is therefore justiciable. The question of effect and meaning of s 28 is therefore a matter for the Court.
10:19: He begins by summarising the point the Justices were particularly interested in yesterday – the effect of s 28 of the Scotland Act 2016 and whether it creates a rule of law in relation to the legislative consent convention.
10:18: The Lord Advocate resumes his submissions from yesterday.
We will also be Tweeting live from the Supreme Court hearing.
No mercy for these enemies of the people . . . war on the rogues, the idlers and the rowdies [Vladamir Lenin]
10:00: The fourth day of this hearing is due to start at 10:15. A brief summary of the first instance decision of the Divisional Court (the “DC”) can be found here. Summaries of the hearing so far can be found here, here and here. There’s also a transcript of yesterday’s hearing here.
Today will see the continuation of the arguments on behalf of the Scottish Government, with Lord Advocate James Wolffe QC beginning where he left off (there’s a useful summary of the Scottish Government intervention here). We’ll also hear from the Welsh Government, the interested parties (the AB parties and Pigney respondents), the Expat Intervenors and the Government’s reply.
You say “potat-o” . . .
Day 3 of the hearing saw the conclusion of the respondents’ submissions – with Pannick QC for Miller arguing that only an explicit provision in a subsequent Act of Parliament can nullify the European Communities Act 1972 (“ECA 1972”), as the ECA 1972 itself contained no clear statement that the executive had prerogative power to do so. The European Union Referendum Act 2015 (“2015 Act”) did not contain such a provision. Equally, it had to be an Act – as other parliamentary resolutions would not override the law of the land:
A motion in parliament simply cannot rectify what is otherwise a legal deficiency in the appellant’s case.
Dominic Chambers QC for the second respondent (and ‘leave’ voter) Dos Santos took a more rights-based line. In summary, by triggering Article 50, legal rights established by the ECA 1972 would be lost, and – in the absence of parliamentary authorisation to nullify or override these statutes – the executive would therefore be acting unlawfully in giving Article 50 notice.
Yesterday’s hearing also saw discussion of the positions in relation to Northern Ireland and Scotland. In relation to the Northern Irish residents, arguments were put forward that the rights conferred to citizens under the Northern Ireland Act 1998 devolution settlement cannot be effected by the prerogative alone.
Finally, the Lord Advocate on behalf of the Scottish Government focused his submissions on the legislative consent convention, whereby the UK Parliament seeks the consent of the devolved legislatures, such as the Scottish Parliament, to legislate on “devolved matters”. James Wolffe QC is up first this morning.