Brexit and the Rule of Law

R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (03 November 2016)

Gina Miller says she brought these proceedings to preserve the rule of law. The businesswoman explains that when she asked her solicitors “If I don’t do this, who will?” they said “either you do this, or it doesn’t get done”. Miller studied law but was put off a legal career because of discrimination against women. She was born in British Guiana where her father served as the attorney general. In London, she worked her way up in the world of finance from rather humble beginnings. She knows about being a poor single mother with a disabled child. Yet Miller is ironically demonised as an elitist immigrant intent on destroying British democracy. She is certain her case is watertight and she thinks that the government’s appeal is “just ludicrous” and “unwinnable”. Analysts such as Dr Eirik Bjorge disagree. For him, the government would have been “all but certain to win in the Supreme Court” if it had argued that “the article 50 notice can be revoked”. In the Divisional Court, at first instance Lord Thomas of Cwmgiedd CJ, Sir Terence Etherton MR and Sales LJ held that the government has no power under the Crown’s prerogative to give notice pursuant to article 50 of the TEU for the UK to withdraw from the EU.

For so holding they were hysterically denounced as “enemies of the people” and called corrupt traitors. However, the court merely applied the UK’s constitutional law and independently determined the legal question presented to it. The judgment was very clear that the court did not call into question the significance of the referendum as a political event and that it was concerned with “a pure question of law”. Professor Douglas-Scott has dubbed Miller “the constitutional case of its generation” and opines that “the government should lose on appeal even with new arguments” because the first instance judgment is robust enough to withstand any attack. All eleven justices of the Supreme Court will hear the appeal for four days (8-11 December 2016). In the run up to the 23 June referendum, Nigel Farage demanded a second referendum in the event of a slim 52%-48% remain victory. But now the extremist has very different ideas. Donald Trump’s English poodle intends to march on the Supreme Court with a 100,000 strong mob to intimidate the judiciary and smother the rule of law (see final judgment). Miller has reportedly spent £60,000 on private security since her High Court win because a £5,000 bounty, for running her over, has been put on her head on social media.

Overview

Miller argues that Brexit will lead to an “exodus” of international business from London and will be a “disaster” for the UK fund market. It was common ground that the consequences of withdrawing from the EU will radically alter the existing legal environment.

The claimants argued that the executive government could not use the Crown’s prerogative powers to diminish or abrogate rights under UK law without Parliament’s express authority or by necessary implication from the terms of an Act of Parliament. The second claimant is Deir Tozetti Dos Santos, a hairdresser, and other interested parties in the case include The People’s Challenge. The claimants’ position was resisted by the secretary of state on the basis that Parliament could choose to leave, or not to abrogate, prerogative power in the hands of the Crown, even if its use resulted in a change to common law and statutory rights, Moreover, no express words existed in the text of European Communities Act 1972 or any other statute abrogating the prerogative powers in relation to the EU treaties.

The claimants submitted that it was not possible for the Crown to validly alter domestic law and annul rights without Parliament’s express authority or by necessary implication by an Act of Parliament. Plainly, the 1972 Act included nothing of the sort. In relation to article 50, the parties agreed that (i) a notice under article 50(2) cannot be withdrawn, once it is given and (ii) article 50 does not allow for a conditional notice to be given: for example, a notice cannot be qualified by saying that it will only take effect if Parliament approves any agreement made in the course of the negotiations contemplated by article 50(2).

Judgment

The Divisional Court (“High Court”) granted the application for judicial review and allowed the claim. It accepted the claimants’ argument that the 1972 Act grants rights to individuals and others which will automatically be lost if the Treaties cease to apply.

In R (Jackson) v Attorney General [2005] UKHL 56, Lord Bingham found the supremacy of the Crown in Parliament to be “the bedrock of the British constitution”. It is an underlying principle of UK constitutional law that the Crown in Parliament is sovereign and that legislation enacted by the Crown is supreme. Parliament could change the law by enacting primary legislation, which is the most superior form of law except where Parliament has itself made provision to allow that to happen. The 1972 Act gives precedence to EU law and is the sole example of this. Parliament is, however, sovereign nonetheless and possesses the power to repeal it.

“The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute,” is how Lord Reid put it in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75. Prerogative powers, whose extent is delineated by UK constitutional law, are residual in nature and constitute legal authority retained by the Crown. At any rate, the Crown is not empowered to displace primary legislation by exercising its prerogative powers. The constitutional limits on such powers are quite extensive. Only prerogative powers recognised by the common law are available to the Crown and their legal effect is limited to recognised boundaries outside which “the Crown has no power to alter the law of the land, whether it be common law or contained in legislation.”

Ever since The Case of Proclamations (1610) 12 Co Rep 74, it was a timeless principle of English law 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” and he has “no prerogative, but that which the law of the land allows him”. This was reconfirmed by section 1 of the Bill of Rights 1688, which made illegal the sovereign’s “pretended suspending power” and the “pretended late dispensing power”. Hence, the monarch was subservient to Parliament without whose consent regal authority could not legally exercised. As held in The Zamora [1916] 2 AC 77, it is “out of harmony with the principles our Constitution” to believe that “any branch of the executive” possesses “power to prescribe or alter the law to be administered by Courts of law in this country”. The Crown’s subordination to law, which is the foundation of the rule of law in the UK, was never in doubt. Indeed, the well-settled constitutional principles at stake in the case were not a source of disagreement between the parties.

Another aspect of the debate was that as a rule of thumb, it was a settled feature of UK constitutional law that the conduct of international relations and the making and unmaking of treaties on behalf of the UK are regarded as matters for the Crown in the exercise of its prerogative powers. Although the Crown’s powers are wide in that regard, it was clear to the court that by making and unmaking treaties, the Crown only:

32. … creates legal effects on the plane of international law, but in doing so it does not and cannot change domestic law. It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights.

Limitations in prerogative powers resulted in the Crown’s inability to ratify the UK’s accession the European Communities under the Community Treaties unless Parliament had enacted legislation. This was a requirement of the Treaties and was essential to incorporate rights and obligations arising under EU law into domestic law. Even prior to the UK’s involvement with the European project, the creation of “a new legal order of international law” meant that the member states willingly “limited their sovereign rights” and the superiority of EU law with direct effect has been well-established since Van Gend & Loos (Case 26/62, EU:C:1963:1) and Flaminio Costa v ENEL (C-6/64, EU:C:1964:66).

R v Secretary of State for Transport, ex p. Factortame Ltd [1990] 2 AC 85 confirmed that, unless repealed from the statute book, the 1972 Act was effective to give directly effective EU law superiority even over domestic primary legislation. Laws LJ rightly said in Thoburn v Sunderland City Council [2003] QB 151 (DC) that the 1972 Act is a constitutional statute which cannot be impliedly repealed by subsequent legislation and can only be repealed or amended by express language in a subsequent statute or by necessary implication from the provisions of such a statute. In R (Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3, the 1972 Act was counted among a number of constitutional instruments by Lord Neuberger of Abbotsbury and Lord Mance.

Broadly speaking, in the present case three categories of rights arising under EU law were presented to the High Court, namely (i) rights capable of replication in UK law (ii) rights enjoyed in other EU members states and (iii) rights that could not be replicated in UK law. The claimants correctly claimed that the 1972 Act is the principal legislation under which the first category of rights – incapable of being preserved by future primary legislation – are given effect in domestic law. The court took the view that the loss of the possibility to request the CJEU to authoritatively rule on the scope and interpretation of such rights would itself amount to a material change in the UK’s domestic law. (Indeed, numerous experts in the field, including Professor Peers, are of the view that as a measure of last resort the Supreme Court is duty bound to make a reference to the CJEU regarding the revocability of notification under article 50.)

Despite the formalistic underpinnings of the Crown’s role on the international plane, the High Court was clear that enacting the 1972 Act was a precondition to the ratification of the relevant Treaties by the Crown. Parliament was aware that ratification of those Treaties could only occur if it enacted the 1972 Act and then amended it to refer to subsequent EU Treaties. The court found that withdrawing from the EU by invoking article 50 would rescind the second category of rights – though unenforceable in domestic courts but nonetheless of central importance – which it intentionally brought into effect by virtue of the ECA 1972. The elimination of these rights through the executive’s use of the Crown’s vestigial prerogative powers was not possible.

It was equally clear from R v Secretary of State for the Home Department, ex p. Fire Brigades Union [1995] 2 AC 513 that as a matter of constitutional history the overriding powers of the democratically elected legislature stand above prerogative powers and “it is for Parliament, not the executive, to repeal legislation.” Overall, as regards the intention of Parliament in the instant case, Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ held that “taken separately and cumulatively” the “the clear and necessary implication” of the provisions of the 1972 Act:

94. … is that Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in exercise of its prerogative powers.

After considering the decision in R v Secretary of State for Foreign and Commonwealth Affairs, ex p. Rees-Mogg [1994] QB 552, the court rejected the proposition that Parliament did not intend to abrogate the Crown’s prerogative powers. To the contrary, under the 1972 Act it intended that British citizens should have the second category of rights – such as free movement of persons and of capital and rights of freedom of establishment – which cannot be destroyed by the Crown by exercise of its prerogative powers. In the court’s view, the Act, which must be taken to cover the field, does not reserve power to the Crown to take action on the international plane to remove EU rights in domestic law. In the absence of requisite statutory authority no notice under article 50 could be given because:

96. … the Crown cannot through the exercise of its prerogative powers alter the domestic law of the UK and modify rights acquired in domestic law under the ECA 1972 or the other legal effects of that Act.

Vintage case law such as Attorney General v De Keyser’s Royal Hotel [1920] AC 508 and Laker Airways Ltd v Department of Trade [1977] QB 643 (CA) analysed by the court confirmed the above finding. It was wrong of the secretary of state to assert that the European Union Referendum Act 2015 gave statutory power for notice pursuant to article 50 to be given. The 2015 Act had to be interpreted within the UK’s framework of Parliamentary sovereignty and representative Parliamentary democracy. In the absence of very clear statutory language to the contrary, referenda could only be advisory for the Parliamentary lawmakers.

The 2015 Act was devoid of such language. Parliament knew that the referendum was intended only to be advisory because a pro-Brexit vote was merely a first step and important future questions connected to the legal implementation of withdrawing from the EU had been left for future decision-making. With the above in mind, the “enemies of the people” clarified that their judgment involved “a pure legal point about the effect in law of the referendum”. Indeed, they were at pains to point out that:

108. … This court does not question the importance of the referendum as a political event, the significance of which will have to be assessed and taken into account elsewhere.

In Re McCord’s Application [2016] NIQB 85, Maguire J held that the government does not need Parliament’s approval to trigger article 50 and that the UK’s departure from the EU would not undermine the Good Friday Agreement. He mentioned The Case of Proclamations and recalled the rule that “the King hath no prerogative, but that which the law of the land allows him”. However, he did not refer to the Bill of Rights and failed to address the core principle that the Crown cannot through its prerogative power change any part of the law of the land.

The Lord Advocate (Scottish Government), the Counsel General for Wales (Welsh Government), the “Expat Interveners”, George Birnie and Others and the Independent Workers Union of Great Britain have been granted permission to intervene by the Supreme Court which explains that the attorney general for Northern Ireland has made a reference to the court regarding devolution issues relating to that jurisdiction. The initiator of the crowd-funded People’s Challenge, Jolyon Maugham, has remarked that the introduction of Scotland’s first minister (Nicola Sturgeon) into the equation means that she may potentially “explode the cosy consensus” and halt Brexit in the event the Supreme Court makes a reference to the CJEU on the dicey issue of whether the two-year process for exiting the EU can be undone once it has begun.

It is clear to Professor Peers that it will not be long “before some aspect of the Brexit issue gets decided by the EU courts; and there is no small irony in that prospect.” The magnitude of the legal consequences of leaving the EU is so intense that even the president of the CJEU, Koen Lenaerts, is astounded by what lies ahead but he has said that article 50 “can be interpreted by our court like any other provision of union law.”

Comment

The justice secretary/lord chancellor Liz Truss was slow to denounce extremist elements in the press when they besmirched the judiciary’s reputation. She failed to condemn the attack of her own volition and violated her duty to defend three honest judges who were put in an invidious position because of the politically explosive nature of the case. Lord Judge felt quite badly let down and lamented that her belated comments were “a little too late and not a lot” to suffice as addressing why defending judicial independence “matters at this particular time”. Dominic Grieve, the former attorney general, was so appalled by the tabloid headlines that he drew parallels with “living in Robert Mugabe’s Zimbabwe”. Contrary to what the homophobic sleaze-peddlers say these judges are heroes whose only real sin is to protect this country from dictatorship and despotism.

The prime minister has an historic axe to grind with the judges since her days as home secretary. Determined not to be outfoxed she says that the independence of the judiciary is a worthwhile thing. But since the freedom of the press underpins British democracy, in relation to the upcoming hearing she conveniently thinks that corrupt elements are entitled to browbeat the justices of the Supreme Court.

Such tensions are the source of continuing controversy. Lady Hale caused a storm when she recently said to students in Malaysia that the referendum was not legally binding on Parliament. Teasing those in power with her observation that the government’s abandonment of the argument that the issue is not justiciable represents a significant development, she set out the details of the parties’ main arguments. In her Ladyship’s mind exists the clear question whether a simple act of Parliament will suffice as authority for the government to give notice or whether comprehensive replacement of the 1972 act would be required. But she also provided a forceful elaboration the government’s position:

The EU Referendum Act 2015 neither expressly nor by implication required that further Parliamentary authority be given to begin the process of withdrawal. The basis on which the referendum was undertaken was that the government would give effect to the result. Beginning the process would not change the law.

If the government loses its appeal, the form of legislation required to be able to lawfully trigger article 50 is a central question in these proceedings. However, even though it was not explicitly considered in the first instance judgment, the Supreme Court does not consider this to be a new issue. Nasty politicians such as Iain Duncan Smith and Dominic Raab have attacked Lady Hale for her exposition of the competing viewpoints. Referring to her as the “the individual concerned”, Smith accused her Ladyship of triggering a “constitutional crisis”. Raab lambasted her for “prejudging a case she is about to hear” and considers it fair “if politicians, the media or public respond” to incorrectly perceived judicial excesses. They and many others feel provoked by her comments and stress that it is wrong of her to pontificate about what Parliament should do. After all, in highly touchy times, press pundits and politicians are predicting an early general election if the government loses its appeal in the most controversial case to be heard in the Supreme Court since it was created in 2009.

But the Supreme Court stands by her two-sided exposition of the arguments in play and its spokesman clarified that “in no way was Lady Hale offering a view on what the likely outcome might be.” In the past, Lady Hale has also been ridiculed for her questioning of the institution of marriage and her views on discrimination against women in the judiciary. Other justices such Lord Carnwath, Lord Kerr, Lord Reed and Lord Mance have also been singled out by the media for having suspicious “links to Europe”.

It is rather odd that Theresa May backs a free press but her own party’s MPs expect Lady Hale to sew her lips up like a failed asylum seeker about “the constitutional case of its generation”. This is so despite the fact that she vehemently highlighted the official counterpoint to the extent of saying “the conduct of foreign affairs, including the making and unmaking of treaties with foreign powers, lies within the prerogative powers of the Crown.” Dominic Grieve thinks that the government’s “chances of success in court are low” because of the inherent internal contradiction that it is vying to pass a bill to trigger article 50 in any event. Other influential Tories such as Sir Edward Garnier (former solicitor general) and Sir Oliver Letwin (who headed a post-referendum “Brexit Unit” in Cabinet) agree.

All three men, who campaigned to remain, advocate abandoning the appeal. Instead, they support a fast and efficiently timetabled bill in Parliament triggering article 50 because the appeal to the Supreme Court is likely to result in a reining in of ministerial powers outside Parliament. Apart from incurring unnecessary expense, the government’s appeal may, as Letwin warns, result in “the Supreme Court deciding to accord some rights or even some veto powers” in relation to invoking article 50. Garnier stressed that litigating the matter further would increase misunderstanding and allow unsavoury political elements to mount unwarranted attacks on the judiciary’s independence.

The Supreme Court’s president, Lord Neuberger, is not known to mince his words. His view that the judiciary must respect the right of Muslim women who wish to wear veils in court raised eyebrows in 2015. Now he is being demonised because his wife Lady Neuberger (Angela Holdsworth) called the referendum “mad and bad” and is against Brexit because it will hurt the poor the most. Irritated Conservative MPs such as Andrew Bridgen and Andrew Rosindell have attacked his Lordship for being “compromised” and are demanding that he should stand down from the hearing because of her publicly pro-EU stance. The court is “absolutely confident” about his impartiality because his spouse’s casual tweets cannot be construed as “political activity” to constitute a breach of the code of conduct. But bemoaning the court’s “naivety”, Charles Moore immediately riposted: “Social media are now pretty much the pre-eminent form of political activity”.

Moore has also belittled the Supreme Court for indulging in “new pretensions” and he pontificates that it “needs to employ greater self-discipline”. Inexplicably designating himself as the ethical watchdog for Brexit and the rule of law, he condescendingly accuses Lady Hale of being “unwise” and moans that she “broke a basic rule of litigation” because she questioned the sufficiency of a simple bill to trigger article 50. He finds “nothing obnoxious” about Angela Holdsworth’s musings on twitter, which he concedes have “the pleasant tone of a highly educated, mildly left-wing grandmother with a strong interest in women’s rights and public affairs” despite containing strong criticisms of the executive government.

Yet to undermine Lord Neuberger’s unquestionable impartiality, Moore nevertheless pointlessly resorts to using his wife’s tweets against him and likens the situation to the time when Lord Hoffman failed to declare his wife’s employment with Amnesty International; which was, of course, campaigning against General Pinochet. (Lord Hoffman was also himself a director and “chairperson” of Amnesty International Charity Ltd, a linked organisation.) Moore goes on to conclude his onslaught by insisting that Lord Neuberger, Lord Mance, Lord Kerr and Lady Hale are “disrespectful” of Parliamentary sovereignty whereas Lord Wilson, Lord Hughes and Lord Sumption “have a more traditional, respectful approach”. In my view, Moore and other mentalists of his creed need to relax and allow the wheels of justice to turn smoothly rather than unduly influencing events to force an outcome that suits them.

Every aspect of Miller has produced an abundance of high-level analysis. The claimants’ argument has been discredited for resting on a “glaringly fallacious syllogism” by Professor Finnis. Yet the potential fallaciousness of his approach has been exposed by Professor Douglas-Scott who accepts that the High Court’s judgment is far from perfect but nevertheless concludes that the government “should lose its appeal” irrespective of any refinement or renewal of its arguments. Lord Kerr of Kinlochard, one of the drafters of article 50 and a seasoned diplomat, believes that notification is not irrevocable and the UK enjoys the option of remaining in the EU even after Brexit negotiations officially begin. Since second thoughts about withdrawal are possible, Douglas-Scott concluded that arguing that notice can be retracted may well be the government’s best shot upon appeal. But she pointed out that a somersaulting argument of that nature is politically risky as it would be tantamount to saying “that Brexit is not unstoppable”. In other words, Brexit does not really mean Brexit.

The government appears to have heeded this warning. Its written case in the Supreme Court is clear that it wishes to proceed on the basis that notice is unconditional and the “point is in any event of no practical significance to this appeal” because if, pursuant to the High Court’s reasoning, the government does not possess prerogative power to trigger article 50 at all then the revocability/irrevocability issue makes no difference to the outcome of these proceedings. Likewise, if the secretary of state is correct in saying that prerogative powers can be relied upon to withdraw from the EU treaties then revocability/irrevocability has no effect on the outcome. The government complains that the High Court’s judgment has the odd result that:

… if the UK is to withdraw from the EU, Parliament must be asked to answer precisely the same question which was put by Parliament to the electorate and has been answered in the referendum; and must give the same answer in legislative form.

Conversely, Professor Young described the High Court’s decision as “ground-breaking” because it may be technically arguable that the 1972 Act is merely a channel for EU law but this is an unrealistic assessment of its actual impact. She seems to have been delighted by the court’s broad, substantive approach in determining whether the UK’s withdrawal from the EU would remove rights. Accordingly, she applauded the three judges for their “brave interpretation” of the law evinced in their decision that the executive government had no unilateral power to undo the practical effects of a constitutional statute such as the 1972 Act. As for the question whether the court’s “reality-check” approach – which is “highly contestable” – was justified, she concluded that both the nature of the adjudication before the court and the effects of invoking article 50 without Parliament’s supervision meant that there was no other realistic option but to find for the claimants. Overall it is not in doubt that the decision in Miller upholds two core constitutional principles, namely “the supremacy of Parliament and the rule of law.”

In Pakistan, law courts operate in a glass house because the judiciary sold off its independence and eternally damned the people by creating the “doctrine of necessity”. It was for want of a comprehensively written constitution that the country fell prey to dictatorship, and ultimately to corruption and intolerance. Infamously, the executive government dissolved the Constituent Assembly in 1954 because of its slowness to produce a new written constitution for the fledgling state of Pakistan.

But even there, in Tamizuddin Khan v Federation of Pakistan, the Sindh Chief Court (Constantine CJ, Bachal, Buksh and Vellani JJ) found that it was open to every “ordinary citizen” to question executive illegality and – finding themselves in similar territory to Lord Thomas CJ, Etherton MR and Sales LJ – they held “the governor general had no power of any kind to dissolve the Constituent Assembly.” Sadly, thereafter the Federal Court overturned the decision and Munir CJ, the founder of the “doctrine of necessity”, held that the matter was not justiciable and the Sindh Chief Court had no power to issue a writ invaliding the actions of the governor general. For his sins, he became the first in a long series of Pakistani judges who can very properly be called the “enemies of the people”.