R (Miller and Dos Santos) v Secretary of State for Exiting the European Union

R (on the application of
Miller and Dos Santos)
v
Secretary of State
for Exiting the European Union

Court High Court
Decided 3 November 2016
Citation(s) [2016] EWHC 2768
Court membership
Judge(s) sitting Lord Thomas CJ, Sir Terence Etherton MR, and Sales LJ

R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union [2016] EWHC 2768 is a UK constitutional law case, relevant for EU law, concerning the constitutional principle of Parliamentary sovereignty in a representative democracy. The High Court held that the royal prerogative, which is in effect exercised by the Prime Minister of the UK, may not be used to nullify rights that Parliament has enacted through primary legislation. This means, only the UK Parliament may, if at all, trigger Article 50 of the Treaty on European Union to notify an intention to negotiate terms to leave the European Union. The Supreme Court announced that the government's appeal against the High Court's judgment would be heard in early December 2016.

Gina Miller and other claimants sought permission to bring an action in the High Court for judicial review on whether the UK government was entitled to notify an intention to leave the European Union under Article 50 of the Treaty on European Union without a vote, and full deliberative debate on the implications or objectives, in Parliament. The Secretary of State for Exiting the European Union argued that the possibility to trigger article 50 was based on the royal prerogative and so any consultation of elected Members of Parliament was unnecessary. Miller contended that, because notification under article 50 could not be revoked (and would result in the UK leaving the European Union without any trade agreement, potentially meaning significant rises in trade barriers, after two years), it would effectively nullify a series of Acts of Parliament. It was a constitutional principle that Acts of Parliament could not be changed without the consent of Parliament.

High Court

In the proceedings all parties accepted that withdrawal from the European Union will have profound consequences in terms of changing domestic law in each of the jurisdictions of the United Kingdom.[1]

At a preliminary hearing on 19 July 2016, lawyers for the government confirmed that the government would not issue Article 50 notification before the end of 2016.[2] In the court proceedings, the government was contending that it would be constitutionally impermissible for the court to make a declaration in terms that the government could not lawfully issue notification under Article 50 unless authorised by an act of Parliament and stated that the declaration now being opposed would trespass on proceedings in Parliament.[3]

Hearing

At the full hearing in October, before three judges sitting as a divisional court (the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales), it was argued for the lead claimant (Miller) that notification under Article 50 would commit the UK to the removal of rights existing under the European Communities Act 1972 and later ratification acts, and that it is not open to the government, without Parliament's approval, to use the prerogative power to take action affecting rights which Parliament had recognised in that way.[4] An argument put for the "Expat" Interveners at the hearing was that by the 1972 act Parliament had conferred a legislative competence on the EU institutions, and in that way had changed the constitutional settlement in the UK.[5]

Responding in the opening submissions for the government, the Attorney-General (Jeremy Wright) outlined how the decision had been reached. In support of the contention that when passing the 2015 Act Parliament well knew of the Article 50 procedure for leaving the European Union if that was voted for in the referendum, he said that Parliament had previously dealt with it when the Lisbon Treaty was included in domestic law by the 2008 Act, and he took the court through the legislation dealing with the European Union and its predecessor, namely:

In further submissions for the government, the lead claimant's primary argument was said by Treasury Counsel to be that it is not open to the executive to use the prerogative power in such a way as to affect or change current economic law, principally statute law;[8] but the government contended that the leading case Attorney General v De Keyser's Royal Hotel meant that the question about the use of the royal prerogative depended on Parliament's legislative intention.[9] The treaty ratification provisions of the Constitutional Reform and Governance Act 2010 were in force from 11 November 2010,[10] that is, after the Lisbon Treaty, including Article 50, was ratified for UK on 16 July 2008,[11] and had come into force on 1 December 2009.[12] While the Act describes "treaty" as an agreement between states, or between states and international organisations, which is binding under international law, including amendments to a treaty, and defines "ratification" as including acts (such as notification that domestic procedures have been completed) which establish as a matter of international law the United Kingdom's consent to be bound by the treaty, ratification of an amendment to a European Union treaty may involve compliance with the European Union (Amendment) Act 2008, and there are further provisions under the European Union Act 2011.[13] The Lord Chief Justice described the statutory procedure as "of critical importance".[14]

The hearing concluded on 18 October, when the Lord Chief Justice said the judges would take time to consider the matter and give their judgments as quickly as possible.[15]

In the meantime, the applications of other parties challenging the government in legal proceedings in Northern Ireland's High Court were dismissed on 28 October, but the court was prepared to grant leave to appeal in respect of four out of the five issues.[16]

Judgment

The Court's unanimous judgment was delivered and published on 3 November. The decision was against the government's contention that the Crown's prerogative allowed giving Article 50 notice, and the Court would later decide on the form of declaration it would make. The Court described the passing of the European Communities Act 1972 as the major step of "switching on the direct effect of EU law in the national legal systems", and reasoned that it is implausible that Parliament's intention was that the Crown should be able to switch it off unilaterally by exercise of its prerogative powers.[17]

The judgment stated that the question for the Court's decision involved the constitutional law of the United Kingdom: it was whether the Crown's executive government is entitled to use the Crown's prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union.[18] The Court held that Parliament had the exclusive right to trigger notification under article 50 of the Treaty on European Union (TEU), because it would result in a series of rights being nullified that were created by Acts of Parliament. The principle of Parliamentary Sovereignty required that only Parliament could overturn an Act of Parliament. This is expressed in the Case of Proclamations (1608), the Bill of Rights 1688 section 1, and continually confirmed since in cases including Burmah Oil Co Ltd v Lord Advocate,[19] and R (Jackson) v Attorney General.[20] The Crown has no power to alter domestic law through prerogative power.[21]

Three categories of rights were (i) rights that could be replicated by UK law (e.g. 28 days paid holidays under the Working Time Directive 2003), (ii) rights of UK citizens in other EU member states (e.g. the right to work abroad, or set up a business, under TFEU articles 45 and 49) and (iii) rights that could not be replicated in UK law (e.g. the right to vote in the EU Parliament or petition the EU Commission to enforce competition law or environmental law standards in the UK).[22] While the Secretary of State accepted that category (iii) rights would be nullified, the High Court also ruled that all rights in categories (i) and (ii) would also be jeopardised in their effectiveness.[23]

The case had come before the court as a "rolled up" hearing,[24] so that both the application for permission to seek judicial review and the substantive merits of the claim were both considered at the hearing. Formally, this meant that permission for full judicial review on the substantive merits was granted.[25]

Supreme Court

The Supreme Court of the United Kingdom has scheduled four days in December 2016 for hearing the government's appeal against the High Court decision.[26] The court is set to hear the appeal between 5 and 8 December, but judgment is not expected to be given before early January 2017.[27] The full court will hear the appeal.[28]

For the Scottish government, Scotland's First Minister, Nicola Sturgeon, told the Lord Advocate to apply to join the case. Sturgeon maintains it "simply cannot be right" for EU rights to be "removed by the UK Government on the say-so of a Prime Minister without parliamentary debate, scrutiny or consent". She argues further that, "legislation should be required at Westminster and the consent of the Scottish Parliament should be sought before Article 50 is triggered."[29] On 18 November the Supreme Court announced that the Attorney General for Northern Ireland had made a reference to the Court regarding devolution issues relating to that jurisdiction, and that the Court had granted the applications of four interveners to take part in the appeal, namely:

The BBC reported that the Lord Advocate would be addressing the Court on Scots law and the Welsh Counsel General's submissions would be addressing the Court on the rule of law and parliamentary sovereignty.[31]

Speaking on 9 November, Lady Hale, deputy president of the Supreme Court, stated that the issue in the case to be heard on appeal by the Court in December is whether giving Article 50 notification is within the Crown's prerogative powers for the conduct of foreign relations or whether the prerogative cannot be used in a way that undermines an act of the United Kingdom Parliament.[32]

In the appeal, the government argues that, while Parliament's enactment of the European Communities Act 1972 was necessary to prevent the UK breaching the EEC Treaties when they came into force on 1 January 1973, the 1972 act was a legal precondition neither for the signature nor for the ratification of the Treaty of Accession, nor for the Treaty coming into force in respect of the UK.[33]

Intervening for the Scottish government, the Lord Advocate states as background that the UK "acceded to the constitutional order of the Communities" when joining on 1 January 1973[34] and argues that "[t]he purported giving of notification under Article 50 TEU by unilateral act of [the UK Government] would be unlawful" because it would [inter alia]

Supreme Court and other Websites

In advance of the hearing the Supreme Court invited the public to view video footage of the entire proceedings, and opened on its website a page headed "Article 50 'Brexit' Appeal" with multiple links, giving a brief explanation of the issues to be considered and other information, and stating that in addition to live video feeds and 'on demand' catch-up video of each court session, transcripts would be available at the website on a half-daily basis (morning session by 4pm, afternoon session around 7pm)...[36]

The government's written Case, prepared in advance of the hearing of the appeal, and subscribed by the Attorney General for England and Wales and the Advocate General for Scotland,[37] includes footnotes referring to legal comment, critical of the High Court's judgment, on pages of UK Constitutional Law Association and two other websites:

A newspaper article published late on 2 December[38] drew attention to the part of the government's appeal case (paragraph 86) which states that the reasoning of the High Court's judgment was wrong "to relegate, almost to a footnote, the outcome of the referendum and to dismiss it as merely ' a political event ' which was of no significance to the question" before the Court. The next day another newspaper's website commented that Ministers had accused the judges of relegating the referendum vote to a footnote and backing the claim that a vote from the House of Commons and House of Lords was now needed before UK and EU talks began.[39] An opinion stated in a BBC website article (3 December 2016) was that there was little expectation of the High Court's ruling being reversed by the Supreme Court.[40]

Appeal hearing

The Supreme Court published a table setting out the time allotted for the hearing of the oral arguments of the parties' advocates in the four days, Monday 5 to Thursday 8 December:[41]

Significance

The front pages of (clockwise from top-right) The Sun, The Daily Telegraph, The Daily Express and The Daily Mail on 4 November 2016, the day after the High Court decision. Their framing of the case and attacks on the judges received criticism.

The High Court decision was met with mixed views in the daily press. The Daily Telegraph commented that the High Court ruling increased the prospect of an early general election,[42] while the Financial Times and The Guardian reported the case as a "blow" or a "setback" to the UK government plans. The financial markets reacted by an increasing exchange rate for the pound sterling against the Euro and the Dollar, on speculation of a delayed or softer Brexit.[43]

Other news media attacked the presiding judges and questioned their impartiality, the Daily Mail calling them "enemies of the people",[44][45] and on its website vilifying one judge as "an openly gay ex-Olympic fencer".[46] The Guardian reported that MPs condemned newspaper attacks on the judges after their Brexit ruling .[47]

Shadow Justice Secretary Richard Burgon condemned personal attacks from newspapers on the judges, describing them as "hysterical", and called on Lord Chancellor Liz Truss to speak out and protect them.[48] Former attorney general Dominic Grieve described the attacks as "entirely unjustified", and said that "[t]here seems to be a paranoid hysteria around that this is being done [to reverse] the referendum. But it’s simply that there has to be a process followed if parliament is to give effect to and express the wish of the electorate."[48] Brendan Cox, widower of Jo Cox, also expressed concern.[48] The General Council of the Bar also called on Truss to condemn the attacks.[49]

The oath of office (prescribed by the Constitutional Reform Act 2005) obliges a Lord Chancellor to respect the rule of law and defend the independence of the judiciary.[50] On 5 November, Truss issued a statement in which she said: "The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality."[49] Her statement was in turn criticised as belated and inadequate.[51] The oath of office for judges obliges them to "well and truly serve" the Queen and "do right to all manner of people after the laws and usages" of the realm "without fear or favour, affection or ill will”.[52]

One national newspaper comment published on the morning of 5 December, before the opening at 11 a.m. of the Supreme Court's hearing of the government's appeal, was that the High Court should not have allowed the judiciary to become involved in a matter of politics, by allowing the application against the government to proceed, with possible consequences for parliament's constitutional sovereignty and supremacy.[53] Another newspaper commented that the unprecedented number of the panel of 11 justices who would be hearing the appeal and deciding the case was recognition of the constitutional significance and political sensitivity of the appeal.[54]

See also

References

  1. ↑ [2016] EWHC 2768 (Admin). para.4
  2. ↑ "Brexit move 'won't happen in 2016' Government tells High Court judge in legal challenge". London Evening Standard. 19 July 2016. Retrieved 21 July 2016.
  3. ↑ SSExEU, para.62
  4. ↑ Transcript, 13 October 2016, p.109-115
  5. ↑ -: Transcript, 18 October 2016, p.31
  6. ↑ Text of European Communities (Amendment) Act 1993
  7. ↑ -: Transcript, 17 October 2016, from p.60
  8. ↑ -: Transcript, 17 October 2016, p.108
  9. ↑ -: Transcript, 17 October 2016, p. 123
  10. ↑ The Constitutional Reform and Governance Act 2010 (Commencement No. 3) Order 2010.
  11. ↑ BBC News 17 July 2008, UK ratifies the EU Lisbon Treaty
  12. ↑ BBC News 17 January 2011, Q&A: The Lisbon Treaty
  13. ↑ CRAG 2010, Explanatory Notes
  14. ↑ -: Transcript, 18 October 2016, p. 5
  15. ↑ -: Transcript, 18 October 2016, p.161
  16. ↑ R (on the application of Agnew and others) v Secretary of State for Northern Ireland and Secretary of State for Exiting the European Union.[http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2016/[2016]%20NIQB%2085/j_j_MAG10076Final.htm]
  17. ↑
  18. ↑ [2016] EWHC 2768 (Admin).
  19. ↑ [1965] AC 75
  20. ↑ [2005] UKHL 56, [9]
  21. ↑ [2016] EWHC 2768, [86]-[88]
  22. ↑ [2016] EWHC 2768, [58]-[61]
  23. ↑ [2016] EWHC 2768, [63]-[66]
  24. ↑ Judicial Review Guidance,Section 3: Judicial Review Process
  25. ↑ [2016] EWHC 2768, [110]
  26. ↑ Theresa May issues a staunch defence of the free press after media coverage of Brexit ruling  – The Daily Telegraph, 6 November 2016.
  27. ↑ Revealed: Brexit appeal judges' EU links  – The Daily Telegraph, 4 November 2016.
  28. ↑ Brexit court ruling appeal date set for 5 December  – BBC, 8 November 2016
  29. ↑ Nicola Sturgeon launches plan to stop Theresa May overturning Brexit legal challenge  – The Independent, 10 November 2016'
  30. ↑ Supreme Court, R. (on the application of Miller & Dos Santos) v Secretary of State for Exiting the European Union
  31. ↑ Scottish and Welsh to have say on Brexit case BBC
  32. ↑ The Supreme Court: Guardian of the Constitution? Lecture, Kuala Lumpur 9 November 2016.
  33. ↑ Appellant's Case, para. 19
  34. ↑ Written Case of Lord Advocate, para. 1
  35. ↑ Written Case of Lord Advocate, paras. 87 and 89
  36. ↑ Access to the Supreme Court building: Article 50 'Brexit' case, 5–8 December 2016.
  37. ↑ Appellant's Case
  38. ↑ The Daily Mail, Why the judges got it so wrong, 22:01, 2 December 2016.
  39. ↑ The Telegraph, "Government warns Brexit vote must not be relegated to a ‘footnote’ ahead of Supreme Court hearing, 9.42 am 3 December.
  40. ↑ BBC, What next if the government loses its Brexit appeal?
  41. ↑ SC, 5 to 8 December 2016, Courtroom 1.
  42. ↑ The Telegraph, 3 November 2016
  43. ↑ Duarte De Aragao, Marianna (3 November 2016). "Pound Jumps as Court Brexit Ruling, BOE Deliver Double Boost". Retrieved 3 November 2016. The U.K. currency climbed on speculation the High Court ruling will delay or soften the terms of the nation’s exit from the EU.
  44. ↑ Phipps, Claire (4 November 2016). "British newspapers react to judges' Brexit ruling: 'Enemies of the people'". The Guardian. Retrieved 6 November 2016.
  45. ↑ Slack, James (3 November 2016). "Enemies of the people: Fury over 'out of touch' judges who have 'declared war on democracy' by defying 17.4m Brexit voters and who could trigger constitutional crisis". The Daily Mail. Retrieved 6 November 2016.
  46. ↑ N Duffy, 'The Daily Mail is very upset because an ‘openly gay judge’ ruled on Brexit' (3 November 2016) Pink News
  47. ↑ Guardian, 4 November 2016
  48. 1 2 3 Bowcott, Owen; Stewart, Heather (4 November 2016). "MPs condemn newspaper attacks on judges after Brexit ruling". The Guardian. Retrieved 4 November 2016.
  49. 1 2 "Bar Council urges Liz Truss to condemn attacks on judges". BBC News Online. 2016-11-05. Retrieved 2016-11-05.
  50. ↑ Constitutional Reform Act 2005
  51. ↑ "Liz Truss breaks silence on judiciary but fails to mention Brexit ruling backlash". The Independent. 2016-11-05. Retrieved 2016-11-05.
  52. ↑ Courts and Tribunals Judiciary
  53. ↑ Telegraph, Whatever the Supreme Court decide, the case for Brexit is strong. Theresa May should make it stronger still.
  54. ↑ Guardian, Senior judges prepare to hear Brexit supreme court appeal

External links

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