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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 (24 January 2017) URL: https://www.bailii.org/uk/cases/UKSC/2017/5.html Cite as: [2017] HRLR 2, [2017] 2 CMLR 15, [2017] WLR(D) 53, [2017] UKSC 5, [2017] 2 WLR 583, [2017] 1 All ER 593, [2018] AC 61, [2017] NI 141 |
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[2017] UKSC 5
On appeals from: [2016] EWHC 2768 (Admin) and [2016] NIQB 85
JUDGMENT
R (on the application of Miller
and another)
(Respondents) v Secretary of State for Exiting the European Union
(Appellant)
REFERENCE by the Attorney General for Northern Ireland - In the matter of an
application by Agnew and others for Judicial Review
REFERENCE by the Court of Appeal (Northern Ireland) – In the matter of an application
by Raymond McCord for Judicial Review
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Clarke
Lord Wilson
Lord Sumption
Lord Reed
Lord Carnwath
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
24 January 2017
Heard on 5, 6, 7 and 8 December 2016
Appellant (Secretary of State for Exiting the EU) Jeremy Wright QC, HM Attorney General Lord Keen QC, Advocate General for Scotland James Eadie QC Jason Coppel QC Guglielmo Verdirame Tom Cross Christopher Knight (Instructed by The Government Legal Department) |
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1st Respondent
( ![]() Lord Pannick QC Rhodri Thompson QC Anneli Howard Tom Hickman Professor Dan Sarooshi (Instructed by Mishcon de Reya LLP) |
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2nd Respondent (Dos Santos) Dominic Chambers QC Jessica Simor QC Benjamin John (Instructed by Edwin Coe LLP) |
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Attorney General for Northern Ireland John F Larkin QC, Attorney General for Northern Ireland Conleth Bradley SC (Instructed by Office of the Attorney General for Northern Ireland) |
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NI Reference (Agnew and others) David A Scoffield QC Professor Christopher McCrudden Professor Gordon Anthony (Instructed by Jones Cassidy Brett Solicitors) |
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NI Reference (SoS Northern Ireland) Tony McGleenan QC Paul McLaughlin (Instructed by Crown Solicitor’s Office) |
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NI Reference (McCord) Ronan Lavery QC Conan Fegan BL (Instructed by McIvor Farrell Solicitors) |
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Ist Interested Party (Pigney and others) Helen Mountfield QC Gerry Facenna QC Professor Robert McCorquodale Tim Johnston David Gregory Jack Williams (Instructed by Bindmans LLP) |
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2nd Interested Party (AB and others) Manjit Gill QC Ramby De Mello Tony Muman Stuart Luke Martin Bridger (Instructed by Bhatia Best) |
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1st Intervener (Birnie and others) Patrick Green QC Henry Warwick Paul Skinner Matthieu Gregoire (Instructed by Croft Solicitors) |
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2nd Intervener (Lord Advocate) James Wolffe QC, Lord Advocate Martin Chamberlain QC Douglas Ross QC Duncan Hamilton Christine O’Neill Emily MacKenzie (Instructed by Scottish Government Legal Directorate) |
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3rd Intervener (Counsel General of Wales) Richard Gordon QC Tom Pascoe (Instructed by Welsh Government Legal Services Department) |
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4th Intervener (TWGB) (Written submissions only) Aidan O’Neill QC Peter Sellar (Instructed by Leigh Day) |
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5th Intervener (Lawyers of Britain) (Written submissions only) Martin Howe QC Thomas Sharpe QC Simon Salzedo QC Andrew Henshaw QC Thomas Roe QC James Bogle Francis Hoar Adam Richardson (Instructed by Wedlake Bell LLP) |
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LORD NEUBERGER, LADY HALE, LORD MANCE, LORD KERR, LORD CLARKE, LORD WILSON, LORD SUMPTION, LORD HODGE:
Introductory
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.
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.
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.
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.
“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 …”
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 …”
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.
“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. …”
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.”
The main issue: the 1972 Act and prerogative powers
Summary of the arguments on the main issue
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.
The constitutional background
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.”
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.
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.”
“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.”
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.
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.
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
(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.
Does the 1972 Act preclude the use of prerogative power to withdraw?
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.
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.
Subsidiary arguments as to the effect of the 1972 Act
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”.
Conclusion on the effect of the 1972 Act
102. We turn, then, to deal with the impact of legislation and events after 1972.
Legislation and events after 1972: from 1973 to 2014
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.
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.
Legislation and events after 1972: the 2015 Act and the referendum
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.
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
(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?
Questions (i), (iii), (iv) and (v)
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.
“(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.”
The Sewel Convention and question (ii)
“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.”
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.”
“[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.
“(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.
Conclusion
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.
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)
“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.
“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.
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.
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”.
“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.
The European Communities Act 1972
“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 …”
“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”.
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.
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.
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.
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.
“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.
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?
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.
“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.
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.
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
“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”).
“(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.
“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.
“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.
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.
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?
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.”
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.
“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.
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.
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).
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.
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)
Constitutional principles
“… 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)
The balance of power
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”.
“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)
“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)
Application of the principles to the present case
“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)
“… 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.”
“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 …”
Pre-empting the will of Parliament
“… 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).
Protection of individual interests
“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.
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)
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.
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.