Live Blog: R (Miller & Anor) v Secretary of State for Exiting the European Union (Day 3)
07 Wednesday Dec 2016
This is a live blog of the third 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 Lucy Hayes (Olswang), Anna Phillips (Nabarro), James Gliddon (CMS), Tom Sandeman (Nabarro), Emma Boffey (CMS) and Iona Millership (Olswang).
20:32: Day 3 Summary
Day 3 featured submissions from Lord Pannick, continuing from where he left off on Day 2, along with submissions from Dominic Chambers QC on behalf of Dos Santos. David A Scoffield QC and Ronan Lavery QC also gave submissions on behalf of the Northern Irish applicants Agnew and McCord. Finally, late this afternoon, the Lord Advocate James Wolffe QC began his submissions in respect of the position of Scotland. He will finish those submissions early tomorrow morning when the Court reconvenes.
Lord Pannick QC and Dominic Chambers QC on behalf of Miller and Dos Santos
Pannick QC began by continuing his submission that the ECA 1972 contains no clear statement that the executive has prerogative power to nullify that Act. He submitted that this means that the Parliament clearly intended that the executive has no such power. Lord Pannick submitted that only an Act of Parliament can nullify statutory rights. His position on the referendum, in response to questioning from Lord Neuberger on this point, was that it has important political consequence, but the result was advisory in nature and not necessarily of binding legal effect (at least not without parliamentary approval). Pannick QC’s position is that the 2015 Act says nothing more than there shall be a referendum, which in itself is not sufficient to overturn the fundamental constitutional principle that the Government lacks power to set aside the ECA 1972 without parliamentary approval. He concluded his submissions by noting that the volume of materials and the eloquent submissions of the lawyers for the Government should not be allowed to obscure the basic principle of constitutional law for the Court.
Dominic Chambers QC, representing the second respondent Mr Dos Santos, adopted the previous submissions of Pannick QC and took forward his own 3-stage approach to his submissions:
- Stage 1 – Parliamentary sovereignty: Parliament is supreme.
- Stage 2 – By triggering Article 50, legal rights – which have as their source primary legislation (namely the ECA 1972) – will be lost, nullified and/or overridden. It has been accepted by the Government that rights will be lost as a consequence of triggering Article 50.
- Stage 3 – In the absence of parliamentary authorisation to nullify or override these statutes, the executive will be acting unlawfully.
The position of Northern Ireland
David Scoffield QC on behalf of Agnew and others – individuals and human rights organisations who are concerned with how the UK’s leaving the EU will affect Northern Ireland residents – submitted that the rights conferred to citizens under the Northern Ireland Act 1998 devolution settlement cannot be effected by the prerogative alone. Scoffield QC’s overall position was that there is a real risk that legislation of constitutional significance for Northern Ireland will be defeated without parliamentary sanction if the appeal succeeds. Likewise, Ronan Lavery QC, representing Raymond McCord, submitted that the ability of a majority in one region to trump another was not a fair reflection of modern democratic society, citing various Canadian authorities in relation to this. His overall position is that there is no parliamentary authorisation for the loss of rights in any legislation made by Parliament and, in the absence of this, the appeal should be dismissed.
The position of Scotland
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”. While submitting that the Scottish Parliament has no veto on the decision to trigger Article 50, he said that the Scottish Parliament’s voice is relevant and needs to be consulted, as a fundamental constitutional requirement. The Lord Advocate’s position is that the legislative consent convention is no longer just merely a convention, but is now a rule of law, as a result of provisions of the Scotland Act 2016. The Lord Advocate will resume his submissions tomorrow morning from 10.15 and we’ll be live blogging throughout the day, as Day 4 brings the oral submissions in this appeal to a close.
16:00: The Lord Advocate has now concluded his submissions for today. The Court will resume at 10.15 tomorrow morning, Thursday 8 December 2016.
15:58: The Lord Advocate submits that this case is to answer what are the constitutional requirements of the UK to withdraw from the EU? He invites the Court to acknowledge that one of those requirements is the legislative consent of the Scottish Parliament.
15:57: The Lord Advocate notes that if the legislative consent convention was not meant to be legally binding, what was the point of the UK Parliament introducing it in statute?
15:56: Lord Mance asks if it would be a “catastrophe” for the devolution settlement if the legislative consent convention was not legally binding.
15:55: In response to questions from Lord Mance and Lord Kerr, the Lord Advocate notes that, in the current constitutional context, the UK Parliament has committed itself in statute to seeking the legislative consent of the Scottish Parliament on “devolved matters”.
15:50: The two Scottish Justices – Lord Reed and Lord Hodge – are questioning the Lord Advocate on the interpretation of the Scotland Act 2016.
15:47: The Lord Advocate says any Bill of the UK Parliament on withdrawal would affect devolved matters in Scotland in a variety of ways: even if these are implicit.
15:46: Lord Reed asks the Lord Advocate about the definitions of “devolved matter” under the Scotland Acts 1998 and 2016.
15:44: The Lord Advocate says that a Bill of the UK Parliament can relate to a reserved matter under the devolution settlement, but may nevertheless still engage the requirement of the consent of the Scottish Parliament. He says that merely because an area is reserved under the devolution settlement, does not mean that consent is not required for that reason alone.
15:41: Lord Wilson notes that many of the Court are struggling to see the relevance of the legislative consent convention to the central issue in this case. Lord Wilson asks whether its relevance is just as an extra argument to support the respondents’ case? The Lord Advocate replies that this is a fair observation. He says that it is for the UK Parliament to change the law of the land, but that the devolved legislatures are entitled to have a voice in that decision also.
15:38: The Lord Advocate replies that the legislative consent convention is no longer merely a convention, but is now converted into a rule of law because it has been enacted into statute by the Scotland Act 2016.
15:36: Lord Mance is asking the Lord Advocate whether the legislative consent convention is properly a constitutional requirement.
15:33: Wolffe QC submits that certain parts of the Scotland Act 2016, which limit the Scottish Parliament and Scottish Government’s powers, would become disabled by withdrawal from the EU. He says that if a Bill of the UK Parliament were to change the Scottish Parliament’s competence like this, then such a Bill would engage the legislative consent convention.
15:28: Wolffe QC states that he does not consider Scottish Parliament to have any veto on the decision to trigger article 50 but that its view is relevant to the question of legislative consent.
15:26: Wolffe QC’s preliminary comments are over and he is now turning to the specific question of legislative consent.
15:25: Wolffe QC says that there is nothing special regarding Scottish law that affects the case.
15:23: Wolffe QC says that when the UK was founded in 1707, legislative powers given to Parliament not to the Crown.
15:22: Wolffe QC draws attention to the constitutional consequences of withdrawal from EU in his skeleton. He says that the Government’s attempt to effect these changes using the royal prerogative offends the imperative rule of our constitution.
15:18: The Lord Advocate for the Scottish Government, the Rt Hon W. James Wolffe QC, now appears in support of the Respondents.
15:16: Lavery QC states that the will of Parliament should not overrule the will of the Irish people and that the triggering of article 50 without their consent would do just that.
15:14: Lavery QC says that Northern Ireland has a complex constitutional settlement that is legally binding as a result of section 1 of the 1998 Act.
15:10: Lavery QC says that section 1 of the Northern Ireland Act 1998 (“1998 Act”) transfers all rights of self determination to people of Northern Ireland and that is the unique distinguishing feature of Northern Ireland.
15:06: Lavery QC says that the notion that a majority in one region can trump a majority in another is not a fair reflection of modern democratic society. He refers to Canadian authorities in support of this.
15:01: Ronan Lavery QC now on representing Raymond McCord. He is arguing that it would be unconstitutional to withdraw from the EU without the consent of the people of Northern Ireland for the following two reasons:
- Membership of EU part of the constitutional settlement
- There has been transfer of sovereignty which means that the people of Northern Ireland have sovereignty over constitutional change rather than Parliament.
15:00: Scoffield QC submits that a constitutional convention may be a constitutional rule – this is not a heterodox view.
14:57: Scoffield QC submits that this is “not a matter of small moment”. There is a risk that legislation of constitutional significance for Northern Ireland will be defeated without Parliamentary sanction.
14:53: In response to a question from Lord Neuberger, Scoffield QC directly attacks the AG for Northern Ireland’s submissions from yesterday – that the EU-related functions of the North / South ministerial council could still be fulfilled if Ireland remained a member of the EU. He submits that this represents a reading of the agreement which fails to take account of the same agreement in its entirety.
14:47: Scoffield QC submits that the North / South cooperation established in the Belfast Agreement was agreed in the context of continuing EU membership. The royal prerogative cannot rule in a matter inconsistent with the clear statutory purpose of this agreement.
14:44: Scoffield QC submits that the legislative authority of the NI administration is limited by EU law, so removal of these rights will allow the administration to do things it has previously not been allowed to do. The opposite also applies – removal of EU rights will prevent the administration from doing certain things. Such alteration of the devolution settlement cannot be effected by means of the prerogative alone.
14:39: Scoffield QC gives examples of Northern Ireland citizens relying on their EU rights to challenge the actions of the executive. These rights will “beat the air” when the UK leaves the EU but they cannot lawfully be defeated by the exercise of the royal prerogative.
14:35: Scoffield QC begins with issue 1 – the Northern Ireland Act 1998 is not neutral to the issue of whether an act of Parliament is needed before the government can give notice under Art 50 TEU.
14:33: David Scoffield QC takes the floor on behalf of Agnew and others – individuals and human rights organisations who are concerned how the UK’s leaving the EU will affect Northern Ireland residents.
14:32: Dominic Chambers QC sums up. There is no Parliamentary authorisation for the loss of rights in any legislation made by Parliament and, in the absence of this, the appeal should be dismissed.
14:27: Lord Reed suggests “life has moved on from the times of Dicey”.
14:23: Lord Carnworth asks a question about the ‘one-line’ bill which James Eadie QC suggested the government would introduce if it loses the appeal.
14:21: Dominic Chambers QC summarises that the outcome of the 2015 Act is not legally binding. The Justices ask about the wording of the 2011 AV Referendum Act and Chambers QC confirms that he will provide the relevant provision which shows the different wording used, which confirms that Parliament is handing over its sovereignty (in contrast to that used in the 2015 Act).
14:17: Dominic Chambers QC reiterates that the 2015 Act contained no requirement for the UK government to implement the result or set a timeline in relation to the referendum. He contrasts this with the act associated with the 2011 AV Referendum, which confirmed that the result of the referendum would be implemented.
14:12: Dominic Chambers QC take the Justices through the history of referenda within the UK, pointing out various references to the fact that although the Government would be bound by the results, Parliament would not be. Referendums in the UK are not legally binding, although Parliament may be morally bound to follow their results.
14:08: Dominic Chambers QC begins by addressing Lord Carnworth’s question from the previous session, in relation to the Youssef case, before continuing with Stage 3 of his submissions – in the absence of Parliamentary authorisation to nullify or override the statutes, the Executive will be acting unlawfully.
14:04: The afternoon session is about to begin. Dominic Chambers QC will conclude his submissions on behalf of the second respondent, Dos Santos, before handing over to the barristers representing the applicants in the Northern Ireland proceedings – Agnew and others and McCord.
13:04: In response to the Appellant saying he does not need Parliamentary approval because he has the Royal Prerogative, Chambers QC argues that represents a fundamental misunderstanding of what the prerogative power is and can do.
This will be pursued further after the lunch adjournment. The Court adjourns and will resume at 14:00.
13:00: Chambers QC remains in his “Stage 2” and he concludes by saying that once it is understood that the source of these rights is domestic law, granted by Parliament pursuant to primary legislation (and it is accepted that these rights would be lost), he can move on to what is needed to lawfully remove these rights. This brings Chambers QC onto his “Stage 3”.
12:54: Chambers QC responds to the Appellants argument regarding the words “From time to time…” in the ECA 1972. He says they do not limit the rights conferred, the constitutional principle that means a Statute is required to take these rights away and also does not cover Article 50 (i.e. the rights, by virtue of exercising the Article 50, have “from time to time” been reduced).
12:45: Chambers QC says that the source of the legal rights in questions is crucial. In this context, he says, the rights are conferred by the ECA 1972. This point is picked up by Lord Carnwarth and questioned. Chambers QC says he will come back to his question after the adjournment, when he has considered the case referred to.
To show the serious task Parliament was faced with (and the control it exerted), when considering the question of the accession treaty to the EU (as it later became) Chambers QC refers to the necessary approval of Parliamentary resolutions. These, he says, preceded and were in anticipation of a subsequent Statute. This Statute was forthcoming, it was the ECA 1972. Everything from then on, he says, needs to be seen through the prism of the ECA 1972.
He concludes by taking the Court through the manner in which international treaties (which give such legal rights) take effect domestically – and that is by Statute.
The key point, he says, is that when entering into a treaty which confers such rights Parliamentary control is required – both to enter into the treaty and give it effect and, consequently, to withdraw or take those rights away. To follow the Appellant’s argument, Chambers QC says, would “rob” Parliament of that control when the Executive seeks to take away those rights.
12:36: Dominic Chambers QC, representing the second respondent Mr Santos, is carrying on from Pannick QC’s submissions. By way of a recap, he has described his approach to his submissions (due to finish at 14.30) as:
- Stage 1, Parliamentary sovereignty. It is supreme.
- Stage 2, The acceptance by the Appellant that, by triggering Art 50 EU, legal rights (which are enshrined in statute) will be lost, nullified and/or overridden.
- Stage 3, In the absence of Parliamentary authorisation to nullify or override these statutes – the Executive will be acting unlawfully.
In relation to Stage 1, he has taken the Court through Dicey’s “magisterial” works and argues that they still hold good today.
Currently, he is discussing Stage 2.
12:30: Dominic Chambers QC submits that the context in which the ECA 1972 was entered requires Parliament to be involved in leaving the EU.
12:16: Dominic Chambers QC submits the doctrine of parliamentary sovereignty is not just a constitutional principle but rather it is a fundamental legal doctrine on which our constitution stands. He also states the dualist approach exists precisely to allow the government to rely on the prerogative for foreign affairs.
12:02: Dominic Chambers QC for Dos Santos sets out his three stage argument as follows:
- The doctrine of Parliamentary Sovereignty – only Parliament itself can set aside legislation enacted by Parliament;
- It has already been conceded by the Government that triggering Article 50 will remove EU law rights. Those rights are enshrined in primary legislation;
- There is no Parliamentary authorisation for government to nullify primary legislation.
11:57: The submissions on behalf of Ms Miller are concluded by Lord Pannick QC submitting that the volume of materials and the eloquent submissions of the lawyers for the Government should not be allowed to obscure the basic principle of constitutional law.
11:53: Lord Pannick QC criticises the Attorney General’s submission that “Parliament can stand up for itself” calling this a “bad legal argument“.
11.49: Lord Pannick QC submits that “only an Act of Parliament” could nullify statutory rights.
11.48: Lord Pannick QC moves to his seventh and final submission on the role of Parliament.
11.44: Lady Hale states the 2015 Act clearly had a legal effect but the question is whether the referendum result had an effect.
11:43: Lord Pannick QC is highlighting that the Government has not pointed to any wording in the 2015 Act and therefore the panel is not being asked to interpret the 2015 Act. Lord Pannick QC submits the 2015 Act is neutral on whether the ministers have prerogative power or not.
11:38: Lord Reed suggests the 2015 Act was designed to result in an event which would clearly have political significance so therefore it was inevitable steps would need to be taken by Government as a result. Lord Reed commented there may not be a legal issue here. Lord Pannick QC says there is a role for court and he does not accept the political significance of the Act touches on the appeal before the Court. It was open to Parliament to legislate on the role of ministers following the referendum and they did not.
11:23: Neuberger considers there may be some force in the argument that parliament has said, ‘let the British people vote’, and is therefore ceding its ground to the people, and it is then over to the Government to give effect to that result. Pannick QC takes issue with this, saying the people’s decision is not necessarily advising the Government rather than parliament. Neuberger asks whether that means the referendum has no legal consequence; Pannick QC avoids this, saying the referendum has an important political consequence. Neuberger questions this stance, saying ‘advisory’ isn’t in the 2015 Act. Pannick QC says the 2015 Act says nothing more than there shall be a referendum, which in itself is not sufficient to overturn the fundamental constitutional principle that the Government lacks power to set aside the ECA 1972 without parliamentary approval.
11:11: The panel’s comments make it clear they are aware of the irony that Pannick QC was actually counsel for the applicant in Rees-Mogg (see post below). Pannick QC says he isn’t attempting in any way to defend his unsuccessful arguments in that case.
11:06: Pannick QC refers to case of R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg  EWHC Admin 4, which was relied on by the Government. In that case, the DC rejected an “ambitious argument” that, despite the fact Parliament had given its approval to the European Communities Act 1993, and that Act had no effect on domestic rights, that Act curtailed generally what would otherwise be a prerogative power to amend or add to the Treaty. There, the court did not accept the argument, saying where Parliament wished to fetter the Crown’s treaty making power it did so in express terms. Pannick submits this has nothing to do with the issue before the court on this occasion, which is whether the Secretary of State has the power to act on international plane in a way which will nullify domestic rights.
10:58: The court has been briefly distracted by a debate on how to pronounce ‘De Keyser’ (in Attorney-General v De Keyser’s Royal Hotel Limited  AC 508, which considers the principles on which the courts decide whether statute has fettered prerogative power). Pannick QC attempts to move on, saying, “You say De Keeser, I say De Kaiser…”
10:55: The Government argued yesterday, says Pannick, that UK citizens’ rights under EU law lapse when we leave the “club“. He says this begs the question whether appellant can lawfully use prerogative powers to nullify these statutory provisions. As one example, he points to s. 4 Communications Act 2003, which describes multiple duties on Ofcom including “a requirement to secure that OFCOM’s activities contribute to the development of the European internal market” and “a requirement to promote the interests of all persons who are citizens of the European Union“. This doesn’t make sense if Secretary of State has prerogative power to terminate all the UK’s obligations. Parliament has adopted legislation proceeding on basis of EU membership, which make no sense if it is not a member. Lord Hughes asks what kind of legislation would be needed; Pannick QC says he is simply saying the Secretary of State cannot proceed on the path of notification without Parliament addressing the problems that will inevitably arise. He says he will deal with the ‘Great Repeal Bill’ later. Lord Hughes considers the same issue could arise with a legislative authorisation as a prerogative authorisation.
10:46: Pannick QC referred to question from the previous day about the extent to which Hansard can be used to determine the purpose of an act. He argues that where the Government is asking them to look at the government’s intention in relation to the European Union Referendum Act 2015 (the “2015 Act”) , they cannot do that only on one side of the argument. Lord Kerr agrees there is an “air of unreality” to ignore what was said about either the ECA 1972 or the 2015 Act at the time. However, Lord Neuberger thinks this is similar to looking at all pre-contractual statements made by contracting parties – “that way madness lies“. Pannick QC confirms, in any event, that his submissions are focused on what the ECA 1972 actually says.
10:35: Pannick QC continues his submissions, stating he will complete his fourth submission from the previous day – that the ECA 1972 contains no clear statement that executive has prerogative power to nullify that Act, which he submits, clearly indicates the executive has no such power.
10:11: The third day of this much-anticipated hearing is due to start at 10:30. A brief summary of the first instance decision of the Divisional Court (the “DC“) can be found here. Summaries of the last two days of the hearing can be found here and 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 Lucy Hayes (Olswang), Anna Phillips (Nabarro), James Gliddon (CMS), Tom Sandeman (Nabarro), Emma Boffey (CMS) and Iona Millership (Olswang). We will also have live tweets on the blog’s Twitter from one of the blog team who will be present at the Supreme Court hearing.
Today will see the continuation of the arguments on behalf of the lead respondent, Gina Miller, which will be made by Lord Pannick QC. We will then hear from Dominic Chambers QC on behalf of Deir Tozetti Dos Santos, the second respondent. We will also hear from the applicants in the references made from Northern Ireland, Stephen Agnew and others (represented by David A Scoffield QC) and Raymond McCord and others (represented by Ronan Lavery QC). The final submissions of the day (time permitting) will be made on behalf of the Scottish Government by W James Wolffe QC, the Lord Advocate.
The case brought by Miller and Dos Santos (in which the Scottish Government is an intervener) centres around whether the Government has the power to give notice pursuant to Article 50 of the Treaty on European Union without an Act of Parliament providing prior authorisation to do so. Pannick QC will argue that fundamental rights created in the European Communities Act 1972 (the “ECA 1972”) and the European Parliamentary Election Act 2002 cannot be undermined without an Act of Parliament. Chambers QC is likely to develop a separate strand of argument around the Royal Prerogative. On behalf of the Scottish government, the Lord Advocate supports Miller and Dos Santos in arguing that a UK Act of Parliament is necessary, and furthermore that such an Act would involve a change to devolved matters and so engages the Legislative Consent Convention.
The applicants in Agnew and others include politicians who are members of the Northern Ireland Assembly, those with close associations with the voluntary and community sector in Northern Ireland and human rights organisations in Northern Ireland. Their barrister will argue that a legislative consent motion from the NI Assembly is needed before an UK Act of Parliament to trigger Article 50, and that there are other factors that Government must take into account before giving notice (for example, the requirement on the Northern Ireland Office under section 75 of the Northern Ireland Act 1998 (“1998 Act”) to undertake an assessment of the impact of this step on the promotion of equality for persons in Northern Ireland).
The other reference from Northern Ireland is the application of McCord, who has been a victims’ campaigner since the murder of his son by Loyalist paramilitaries on 9 November 1997. The Northern Ireland Act gave effect to the multi-party negotiations concluded by the Good Friday Agreement. This Act provides that Northern Ireland shall not cease to be part of the United Kingdom without the majority consent of the people of Northern Ireland, but should the majority express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State will lay proposals before Parliament to give effect to that wish. The applicant suggests that there can be no change to the constitution of Northern Ireland without the consent of the people of Northern Ireland and that withdrawal from the European Union would constitute such a change.
Yesterday, Lord Pannick QC opened submissions on behalf of Ms Miller by provocatively stating that on the Government’s argument, the ECA 1972 would have “a lesser status than the Dangerous Dogs Act” because it would remain in place “only for as long as the executive does not take action on the international plane to terminate the treaty commitments“. A summary of the arguments already advanced can be found in our live blog from yesterday. Today, the arguments put forward on behalf of Miller and others will assert that:
i. Ministers cannot use prerogative powers to frustrate a statutory scheme.
ii. None of the statutes which came into force after the ECA 1972 provided any powers for the Government to nullify the ECA 1972.
iii. Only an act of Parliament can remove the domestic rights created by EU law.
The written cases for all of the parties involved in the case can be found on the Court’s Article 50 case hub.