Policy Exchange’s Richard Ekins in the Telegraph: ‘Day two in the Court: a tale of two Acts (with a devolution interval)’

Dec 7, 2016

The Government today rounded out its argument on appeal, critiquing the High Court judgment and responding pre-emptively to the devolution arguments which are to be raised tomorrow by the Scottish and Welsh governments amongst others. Lord Pannick then began his argument in response as to why the Supreme Court should uphold the High Court’s judgment.

There was much discussion about the legal and constitutional significance of the European Union Referendum Act 2015. James Eadie QC, finishing his submissions for the Government this morning, did not argue that the Act was the source of power to trigger Article 50.

His main submission was that the 1972 Act did not oust the prerogative. Thus it had always been open to the Government to withdraw from the EU Treaties. But, even if the 1972 Act had limited the prerogative to withdraw from the treaties, then in the alternative he argued that the 2015 Act “lifted the clamp”, as Lord Reed put it, reviving the prerogative power. In enacting the 2015 Act, Parliament presupposed that the prerogative would be available to implement the outcome of the referendum if need be.

Would it have been lawful to withdraw from EU without the referendum or for the Government to have decided, immediately after enactment of the 1972 Act, not to ratify the treaties? The Government’s answer is yes. Lord Carnwath asked whether such action might be an abuse of power. Lord Reed suggested that, in view of the 2015 Act, no court should entertain the argument that the use of the prerogative to withdraw from the EU is an abuse of power – assuming that there is a power at all, which is the central question in the case.

Lord Pannick, representing Gina Miller and opening his submissions in response, insisted that he was not saying that triggering Article 50 was an abuse of power. He argued instead that without empowering legislation there simply was no power. It was extraordinary, he said, for ministers to try to frustrate or nullify a statute.

True, it would be: but the question for the Court is whether the use of the prerogative to trigger Article 50 is nullification of the 1972 Act or rather just exercising a right in the treaties which changes how the Act applies (what it applies to) without at all displacing or defying it.

Lord Pannick contends first that the law prohibits use of the prerogative to frustrate or destroy statutory rights and second that, in any case, Parliament in 1972 intended to oust the prerogative. The High Court decided the case on the second, narrower ground, but without expressly rejecting the first. If the Supreme Court upholds the judgement, as is possible, it would be best if it rejected the first ground, for it risks enabling many further challenges to what would otherwise be perfectly lawful action.

The question of how to characterise the 1972 Act remains key. Eadie made further submissions about the context in which it was enacted, pointing out that the Government had withdrawn from the European Free Trade Association by way of the prerogative before the EFTA Act 1960 was repealed.

Lord Pannick also spoke to the context of the 1972 Act, disagreeing with Professor John Finnis’s analysis, on which Eadie had relied on the opening day of the hearing.

However, Lord Reed pointed out the radical disjuncture between the 1972 Act and the subsequent scope and depth of European law, and Lord Carnwath queried how important the 1972 Act was in view of the fact that Article 50 was only introduced into the EU legal order in 2008.

The Supreme Court’s eventual decision will turn on which characterisation of the 1972 Act it accepts and on whether it understands the use of the prerogative to change the treaties that the Act transposes into law or to improperly displace statutory rights.

 

This article first appeared in the Telegraph — click here to read it on the newspaper’s website

Author

Professor Richard Ekins

Richard Ekins
Head of the Judicial Power Project Read Full Bio
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