UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

This is a live blog of the second 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 Emma Cross (Olswang), Matt Clark (CMS), Byron Phillips (Nabarro), Rachel Wilson (Olswang), Clementine Bottet (Nabarro) & Jessica Foley (CMS).

21:00 Day 2 Summary

Day 2 featured final submissions for the Government from James Eadie QC, as well as submissions from Lord Keen QC (Attorney General for Scotland) and John F Larkin QC (Attorney General for Northern Ireland). The final section of the afternoon featured submissions from Lord Pannick QC on behalf of the first respondent (and “Lead Claimant” in the original case), Ms Miller.

James Eadie QC continued from where he left off yesterday, covering three of the five key principle arguments at the heart of the Government’s appeal and addressing questions that had been raised by the Justices in Day 1. James Eadie QC made submissions on three key points:

1. There is no basis for imposing some form of hidden legislative presumption that Parliament intended to introduce EU law into domestic law in such a way that could not be undone by the exercise of prerogative power by passing the ECA 1972. Such implication is impossible both if the later scheme of legislation is taken into account and if the ECA 1972 is viewed in isolation. The ECA 1972 merely provides the mechanism for transposing – it does not, and was not intended to, touch the exercise of the powers on the international plane. It is of the very essence of the ECA 1972 that EU rights created on the international plane will be altered and removed directly through the exercise of prerogative powers and that is a significant step along the road to finding the intention in relation to withdrawal. James Eadie QC faced tough questioning from the Justices on what became a lengthy third submission, on areas including Parliament’s involvement in the process of the UK leaving the EU.
2. The reasoning and conclusion of the Divisional Court about the statutory scheme concerning Article 50 has serious implications for the usual and long-established exercise by Government of the foreign affairs prerogatives. Applying such a broad principle would take the Court over the line between interpretation and judicial legislation. The courts would be imposing, in effect, a new control of a serious kind (namely the need for primary legislation where domestic law is affected). During this fourth submission, Lord Sumption took issue with certain of the case-law provided by James Eadie QC, noting that his examples were not examples where the exercise of prerogative powers had altered domestic law.
3. The Government’s case fully respects and offers no affront to Parliamentary Sovereignty. Consideration of this issue by Parliament has included must recently the passing of the 2015 Act. Parliament’s interests, and its sovereignty, are protected by its own decisions and processes; there is no force in the point that says the Court needs to intervene to protect it. In any event, triggering Article 50 merely starts the process and Parliament will inevitably be involved going forward in the process of withdrawal.

It was then the turn of Lord Keen QC, the Advocate General for Scotland,  to make submissions in respect of the devolution issues. Lord Keen QC sought to address three themes that percolate through the separate interveners’ cases, namely:

1. sovereignty and the prerogative;
2. the constitutional status of the devolution legislation; and
3. the Sewell convention and attempts to elevate it into some form of constitutional requirement for the purposes of Article 50.

Lord Keen QC noted that writings pertaining to the constitutional law of Scotland make it clear that the foreign affairs prerogative was considered to be operative under Scottish law, very much in the same way as it operates under the law of England. In respect of the devolution legislation itself, Lord Keen QC noted that there is nothing in this legislation that could abrogate the exercise of the foreign affairs prerogative – namely the answer is the same in Scotland, Northern Ireland and in Wales as it is in England. Lastly, in respect of the Sewell convention, Lord Keen QC noted that this is a political convention concerning the legislative functions of the Westminster Parliament. It is a self-denying ordinance on the part of Parliament – it was never intended to be a justiciable legal principle; it is a political restriction on Parliament’s ability to legislate in respect of devolved matters. The correct legal position is that Parliament is sovereign and may legislate at any time on any matter: “At the end of the day, the Sewell convention is wholly irrelevant to this appeal and indeed to the conduct of foreign affairs.”

After lunch, John Larkin QC, the Attorney General for Northern Ireland made submissions in respect of four questions he had referred to the Court. In considering whether the triggering of Article 50 by the exercise of prerogative power without the consent of the people of Northern Ireland impedes the operation of s.1 of the 1998 Act, Lord Larkin QC stated that the answer is “simply no“. John Larkin QC went on to submit that there is no provision in the 1998 Act, nor any part of the Belfast Agreement nor the British-Irish Agreement which (however they are constructed and taken apart singly or collectively) imposes any constitutional requirement which the UK Government must satisfy before giving notice under Article 50.

To round off the day, Lord Pannick QC set out 7 principal arguments against the Government’s appeal:

1. The 2015 Act was silent on, and therefore did not assist with, the question of the scope of prerogative powers.
2. Prerogative powers to act on an international level cannot validly be exercised to nullify domestic rights or obligations.
3. It was for the Government, as the appellant in the case, to demonstrate that Parliament had clearly conferred powers on the Government to nullify a statutory scheme.
4. Examination of the ECA 1972 showed that Parliament did not intend that the ECA 1972 could be nullified by a minister exercising prerogative powers.
5. Ministers cannot use prerogative powers to frustrate a statutory scheme.
6. None of the statutes which came into force after the ECA 1972 provided any powers for the Government to nullify the ECA 1972.
7. Only an act of Parliament can remove the domestic rights created by EU law.

In his submissions, Lord Pannick QC elaborated on Parliament’s intention when the ECA 1972 was brought into force and described it as a “constitutional revolution”. He said that it cannot have been intended by Parliament for the ECA 1972 to be removed by the executive using its prerogative powers. Lord Pannick QC faced some questions regarding the relevance of the position in 1972 given that Article 50 was brought in under legislation in 2008. Lord Pannick QC argued the two key questions were; i) whether Parliament intended in 1972 that the ECA 1972 could be set aside by the executive, and ii) whether any later legislation had altered the position. He argued that only a clear indication of a change in the position would suffice.

Lord Sumption commented that both James Eadie QC, for the Government, and Lord Pannick QC, for the lead claimant, agreed that there existed a great scheme of Parliamentary controls over prerogative powers within the legislation which the Justices had been referred to. James Eadie QC relied on this to demonstrate that Parliament could have controlled prerogative powers in relation to Article 50, but did not do so, whereas Lord Pannick QC argued this actually demonstrates a theme of Parliamentary control before any amendments are made to EU treaties, which must also mean Parliamentary control is required in relation to those treaties being repealed.

Lord Pannick QC also dealt with the much discussed meaning of “from time to time” in section 2(1) of the ECA 1972 and submitted this simply recognised that EU rights would evolve through acts of the European institutions, rather than through nullification of those rights.

Lord Pannick QC will continue his submissions tomorrow morning on his fifth, sixth and seventh principal submissions outlined today. He will be followed by Dominic Chambers QC on behalf of the second respondent, Dos Santos, as well as counsel for the Applicants Agnew and McCord (dealing with whether legislative consent is needed from the Northern Ireland Assembly) and The Lord Advocate on behalf of the Scottish government (dealing with further issues surrounding devolution).

Proceedings are expected to recommence at 10.30am tomorrow.

16:30: The court has adjourned for the day. Lord Pannick QC will resume his submissions at 10:30am tomorrow.

16:29: In response to a question from Lord Carnwath, Lord Pannick QC says that Article 50 cannot provide any basis for notification if one does not exist in domestic law. Article 50 is “neutral” as to the basis for a notification.

16:25: Lord Pannick QC refers to section 2 of the ECA 1972 which is headed “General Implementation of Treaties”. He says it would conflict with the statutory purpose of the Act if a Minister could use prerogative powers to defeat or frustrate the UK from the Treaties so that the rights they create are no longer “implemented” in national law.

16:20: In response to a question from Lady Hale, Lord Pannick QC says that where the main EU Treaties have been amended, they have always been the subject of express Parliamentary approval under section 1(2) of the ECA 1972 before ratification. He says Parliamentary control has always been required for variation, and should also be required for nullification.

16:12: In response to Lord Carnwath, Lord Pannick QC emphasises that although Article 50 gives a power to leave the EU, it refers to the constitutional requirements of the Member State concerned. It does not alter the position regarding prerogative power. He says this is why is it is important to consider what was the position as to the prerogative power in 1972 and whether anything has happened since then to change the position.

16:07: Lord Pannick QC addresses the Government’s submissions on the long title to the ECA 1972. The long title to an Act is well-established as an aid to construction. Lord Pannick QC says it is no answer for the Government to say that the long title to the ECA 1972 “says nothing about withdrawal“.

16:04: Lord Pannick QC refers to the case of Robinson v Secretary of State for Northern Ireland, which he submits supports a “flexible response” to constitutional developments. In that case, Lord Bingham said that the relevant Act should be “interpreted generously” bearing in mind the values which the constitutional provisions are intended to embody. Lord Pannick QC says the values inherent in ECA 1972 were a commitment by Parliament to the inclusion of EU law as part of domestic law, with the profound legal consequences that entails.

15:58: Lord Pannick QC says the ECA 1972 was intended to achieve a “constitutional revolution“.

15:54: Lord Pannick QC says the constitutional status of the ECA 1972 is one of the main reasons why the Government wishes to notify under Article 50 – in order to remove the powerful effect of the ECA 1972. This constitutional status is, Lord Pannick QC says, also why there can be no notification without Parliament’s authorisation.

15:52:  Lord Pannick QC says the rights and duties created at national level take priority over inconsistent national law and their scope and meaning is conclusively determined by the Court of Justice of the EU.

15:49: Lord Pannick QC moves to his fourth submission, which focuses on the purpose and contents of the ECA 1972. He says the Government has failed to recognise the nature and significance of the ECA 1972 in domestic law.

15:45: Lord Pannick QC is discussing the doctrine of implied repeal. He says the ECA 1972 is exempt from the doctrine, so only a clear later statute would be recognised by the Court as demonstrating a Parliamentary intention to repeal or amend the ECA 1972.

15.40: Lord Pannick QC moves to his third submission: That the burden is on the government, as the appellant, to show that Parliament has “clearly conferred” a power to nullify statutory law.

15.34: Lord Pannick QC stated the differences between the ECA 1972 and EFTA; which does not create any rights in domestic law. Therefore a decision to notify under EFTA was different.

15.30: Lord Pannick QC emphasised that case law shows “you cannot use the prerogative to take away the rights of a citizen“.

15.20: Lord Pannick QC comments that it is rare to find examples of the crown using treaty-making powers to nullify statutory rights. He takes the Justices to two case judgments where this has occurred.

15.16: Lord Pannick QC turned to his second argument: That there were limits to prerogative powers such that they cannot validly be exercised to nullify statutory rights or obligations. What is agreed on international level cannot affect domestic law.

15.14: Referencing James Eadie QC’s submission yesterday that Parliament would be being asked the same question as put to the public in the June referendum if Parliamentary approval was needed – Lord Pannick QC submits that we cannot assume that whether the UK leaves or remains in the EU is the only question that Parliament may wish to consider. He suggested Parliament may wish to set out the information needed before a notification, or to impose substantive or procedural requirements (e.g. reporting back to Parliament).

15.09: Lord Pannick QC takes the Justices to Hansard to assist with identifying purpose of the 2015 Referendum Act, which he submits does not address the process by which the UK would leave the EU in the event of a leave vote. Therefore, prerogative powers are unaffected by the 2015 Referendum Act.

15.02: Lord Pannick QC says that James Eadie QC’s reliance on the statutes after 1972 could not assist the government – unless it was contended that Parliament intended to confer a new power to nullify the ECA 1972.

14:58 Lord Pannick QC says he can demonstrate from the contents of the legislation that parliament itself has imposed a clear system of parliamentary control on changes to the treaties, and thereby “bear the burden” of proving that it is not open to ministers to frustrate a statutory scheme without recourse to parliament.

14:53 Lord Pannick QC expresses extreme doubt that parliament, when enacting the ECA 1972, envisaged that ministers would be able to revoke such a significant change to our constitutional order. He contends that to suggest that this was envisaged would require the “strongest evidence” to support the proposition.

14:48 Lord Pannick QC opens his submissions for the “lead” claimant.

14:47 John Larkin QC closes his submissions.

14:40 John Larkin QC discusses the manner in which a “political” constitution such as ours recognises the capacity of the executive to shape our constitution, and the need for this flexibility to be respected in circumstances where the specific executive prerogative has not been taken away by statute.

14:36 John Larkin QC notes the enduring value of the Robinson decision, particularly with respect to the commentary of the majority as to enduring constitutional principles.

14:31 John Larkin QC states that no provision in the 1998 Act, the Belfast Agreement or the British-Irish Agreement purports to limit the power of the UK government in international affairs.

14:27 John Larkin QC emphasises the need to exercise caution when attempting to use the Belfast Agreement as an aid to construction.

14:15 Lord Reed notes those authorities (i.e. Robinson) in which the courts have adopted a different approach towards constitutional statutes.

14:12 John Larkin QC observes the recent trend towards purposive, as against “generous”, construction of statutes (including constitutional statutes).

14:10 John Larkin QC discusses the scope and purpose of s.1 of the 1998 Act, which governs the status of Northern Ireland as part of the United Kingdom.

14:00 John Larkin QC, the Attorney General for Northern Ireland, opens the afternoon’s submissions.

13:01 Lord Keen QC brings his submissions to a close and the Court adjourns for lunch. The hearing is expected to resume at 14:00.

13:00 Lord Keen QC described the Sewel Convention as a “self-denying ordinance”.

12:59 Lord Keen QC submits that the Foreign Affairs Prerogative was not “clamped” by the ECA 1972: it has been used by Parliament many times since the ECA 1972. He  states that Parliament was aware of Article 50 and the Foreign Affairs Prerogative when the 2015 Act was enacted. Lord Keen QC further states that if Parliament wished to intervene in the Executive’s decision making at that point it could have: it remained silent.

12:52 Lord Keen QC suggests that the Lord Advocate for Northern Ireland does not make any submissions to say how the Sewel Convention can be a legal requirement.

12:50 Lord Keen QC states that this case does not concern passage of legislation. “The Sewel Convention is irrelevant to this appeal and indeed to foreign affairs”.

12:45 Lord Sumption asks Lord Keen QC “it can’t purely be a political restriction once enacted?”. He asked Lord Keen QC whether in his submission the Sewel Convention being incorporated into an act of Parliament makes no legal difference to its effect. Lord Keen QC replied “yes”.

12:43  Lord Keen QC states it is clear in the relevant legislation that Parliament is sovereign. “The Sewel Convention is merely a political restriction”.

12:39 Lord Keen QC refers to Lord Reid in the Imperial Tobacco and other cases where it was suggested that this is a convention and not a legal requirement.

12:36 Lord Keen QC apologises for the pace at which he is having to make his submissions and suggests that the Court can consider the transcript of his submissions to assist.

12:33 Lord Keen QC suggests that there is no means by which to suggest that the “Foreign Affairs Prerogative is impinged or qualified”

12:28 Lord Keen QC suggests it was surprising that the Divisional Court was so dismissive of Mr Justice McGuire’s position.

12:26 Lord Keen QC suggests that the interveners’ case does not consider that it would be possible for Parliament to repeal domestic legislation inspired by EU directives etc. without withdrawing from the EU.

12:23 Lord Keen QC refers to the fact that devolution legislation does not require the UK to be a member of the EU, but it assumes that the UK is a member of the EU and acts as a conduit for rights and laws arising at an EU level to be imported into Scots Law.

12:17 Lord Keen QC refers to the conduct of foreign relations by the UK, and the fact that those matters are reserved in/excepted from devolution legislation.

12:13 Lord Keen QC refers to UK devolution legislation and the decision of the Scottish Inner House (in Imperial Tobacco), which considered the Scotland Act to be an Act of Parliament capable of amendment by Parliament, rather than a constitution (albeit a constitutionally important Act).

12:09 Lord Keen QC refers to the issues of sovereignty and prerogative powers, and case law that he submits suggests that the foreign affairs’ prerogative should be exercised in England and Scotland separately.

12:00 Lord Keen QC (Advocate General for Scotland) begins his submissions with regard to devolution issues.

11:58 James Eadie QC submits that the simplicity of the respondents’ position represents a “serious constitutional trap”.

11:57 James Eadie QC begins his closing submissions.

11:55 James Eadie QC states that Parliament is already deeply involved in the process of withdrawal, but no one party has called for primary legislation to be passed on the issue of withdrawal, and suggests that Parliament does not want the burden that “the divisional court has thrust upon it”.

11:52 James Eadie QC suggests that the government giving notice under Article 50 would be entirely in accordance with the legislative scheme of parliamentary sovereignty.

11:47 James Eadie QC requests, in the interests of time, and partly “out of cowardice”, that he bypasses submissions based on double-taxation.

11:45 Lord Mance suggests that, in signing up to the EU in 1972, it was recognised that directives “inspired” domestic UK law that would continue to have domestic effect after withdrawal; as distinguished with directly effective rights/laws, which are conditional on membership.

11:42 James Eadie QC distinguished the actions of the Canadian government “on the international plain” in withdrawing from an international treaty, with the subsequent domestic legislation it introduced to deal with the consequences of that withdrawal.

11:39 James Eadie QC refers to the Canadian House of Commons’ non-binding resolution in respect of ratifying the Kyoto protocol on climate change by way of comparison.

11:33 James Eadie QC suggests that none of the authorities cited by the DC decided that the government could not withdraw from an international treaty which had the effect of altering domestic law.

11.27: Lady Hale notes that there are vast swathes of EU law that has been implemented into national legislation. That law will presumably remain in place, but be affected by (for example) the fact that the beneficiaries of those laws will no longer be able to refer these laws to the Luxembourg court in order to ensure that these rights keep up with EU law.

11.26: What happens if, inspired by European Law, the common law has moved to a particular place? For James Eadie QC – the common law can develop in recognition of whatever principles it wishes. That is ultimately a matter for the courts.

11.24: James Eadie QC discusses with the Justices the complexities around how it is all going to work “when you leave the club”.

11.22: James Eadie QC – it is integral to the scheme of this legislation that the government can, through the use of the prerogative, change the law.

11.19: If the question of triggering Article 50 goes back to Parliament – it could be met by a one line act. Would that be a sensible basis on which Parliament had meant to act? (having already passed the 2015 Act).

11.17: James Eadie QC repeatedly stresses how the 2015 Act was, after a lot of controversy and a general election, ultimately primary legislation passed by Parliament.

11.07: James Eadie QC notes that the exercise of the prerogative can be used to take away domestic powers. That is not the points in which you stop the analysis – you must then move on to second question – has Parliament imposed constraints onto exercise of the general power (i.e. the specific elements).

11.05: The right question to ask is has the general power been limited or excluded by Parliament.

11.02: James Eadie QC – can you ever have a prerogative in a way that allows you to impact on domestic legal rights and law?  One has to deal with the nature of the prerogative in which you are dealing. This is a general power – the power of the Government to deal with foreign affairs – with specific elements (everything you need to do in order to deal with that).

10.58:  James Eadie QC notes that the consequence of the Divisional Court’s ruling is to introduce much more stringent controls on the use of royal prerogative (namely that you would need primary legislation to use the prerogative).

10.56: James Eadie QC moves on to his fourth submission – the reasoning and conclusion of the Divisional Court has the most serious implications for the usual and long established use by the Government of the royal prerogative.

10.51: James Eadie QC repeats that nothing more is needed in the 2015 Act – in terms of express statutory language – to give effect to the prerogative.

10.49: James Eadie QC repeats the Government’s position that the legal significance of the 2015 Act is entirely significant with the scheme of legislation as a whole. It is silent on the effect of the referendum – consistently silent – and leaves the prerogative in place. It is clear that the prerogative would be used by triggering Article 50.

10.46:  When Parliament passed the 2015 Act, was it putting into place a political process – the significance of which depends on the size of the turnout and the majority, which is ultimately a matter of political judgment which courts are not equipped to deal with?

10.42:  James Eadie QC notes that the giving of an Article 50 notice was preceded by primary legislation – the 2015 Act. In any view, the 2015 Act meant Parliament had decided to put to the people the “in out question”. One of the outcomes of this binary question was that an Article 50 notice would have to be given. In this regard, the 2015 Act carries real constitutional significance.

10.38: The ECA 1972 is dualist in nature by itself, however it cannot necessarily be viewed in isolation. The later legislation supports the interpretation that Parliament was considering withdrawal.

10.37: James Eadie QC discusses the question of scale. The Government’s answer to that is that the ECA 1972 does touch withdrawal. The fact that it creates rights that are contingent on the shape of the corpus of EU rights is not a complete answer, but a step along the way (Parliament was contemplating the removal of rights).

10.35: James Eadie QC deals with Lord Mance’s query of yesterday regarding Fire Brigade. In this case, there was a specific statutory duty to which the Secretary of State was subject and which he had refused to exercise.

10.32: James Eadie QC notes in response to the Justices queries that we need to look at the position of the constitution today and not the position 40 years ago.

10.30: James Eadie QC concedes that you cannot proceed on the assumption that Parliament will legislate or decide to pass the Great Repeal Bill.

10.22: James Eadie QC continues his third broad submission regarding the fact that there is no basis in the ECA 1972 for concluding that Parliament intended to legislate so as to introduce EU rights into domestic law in such a way that it could not be undone by exercise of prerogative power.

09.45: The second day of this much-talked about hearing is due to start in 30 minutes. Our live blog and summary of the first day of the hearing can be found here and a full transcript of the first day of the hearing can be found here.

This post will be updated throughout the day by a team of lawyers from Olswang, CMS and Nabarro so refresh this post regularly in order to keep up to date with the latest content. Today’s team comprises Emma Cross (Olswang), Matt Clark (CMS), Byron Phillips (Nabarro), Rachel Wilson (Olswang),  Clementine Bottet (Nabarro) and Jessica Foley (CMS). We will also have live tweets on the blog’s Twitter from the media suite of the Supreme Court itself.

We are due to hear the remainder of the appellant’s case this morning. Following the conclusion of James Eadie QC’s submissions, Lord Keen QC will make submissions for the Government on the issues relating to devolved institutions.

After lunch (if all remains on schedule) we are then set to hear from John F Larkin QC, the Attorney General for Northern Ireland, who has referred the following four devolution issues to the Supreme Court in the matter of an application by Agnew and others for Judicial Review:

1. Does any provision of the Northern Ireland Act 1998 (“1998 Act’) read together with the Belfast Agreement and the British-Irish Agreement have the effect that an Act of Parliament is required before notice can validly be given to the European Council under Article 50(2) of the Treaty on the European Union (“TEU”)?
2. If the answer to question 1 is ‘yes’, is the consent of the Northern Ireland Assembly required before the relevant Act of Parliament is passed?
3. If the answer to question 1 is ‘no’, does any provision of the 1998 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 to the European Council under Article 50(2) TEU?
4. Does section 75 of the 1998 Act prevent the prerogative power being exercised to give notice to the European Council under Article 50(2) TEU in the absence of compliance by the Northern Ireland Office with its obligations under that section?

The case of the Attorney General for Northern Ireland can be found here.

Lastly, time prevailing, we expect to hear from Lord Pannick QC regarding the Lead Claimant’s (as Mrs Gina Miller was so designated by the Divisional Court at its hearing on 19 July 2016) submissions. The Lead Claimant’s written case (in very brief summary) submits that the Supreme Court should dismiss the Government’s appeal because the Divisional Court correctly concluded that:

1. the European Communities Act 1972 (“ECA 1972”), as interpreted with the aid of relevant legal principles, means that only Parliament itself could defeat the statutory rights which Parliament has created. Parliament did not intend that the rights it has created could be defeated or frustrated by the actions of a Minister purporting to exercise prerogative powers; and
2. in any event, where Parliament has created statutory rights (and in particular statutory rights of constitutional significance) in the ECA 1972 and in the European Parliamentary Elections Act 2002, at common law the appellant has no prerogative power to take action which will defeat those rights. Clear statutory authority is required and there is no such authority.