Pity poor James Eadie QC, the lawyer tasked with swaying at least six Justices of the UK Supreme Court to his rather unappealing view that David Davis can sweep away 40-odd years of EU rights with the scrawl of his crabbed hand on an Article 50 notice.
When smooth-as-silk Silk Lord Pannick stood to address their Lordships and Ladyship in the Gina Miller Brexit case, one could sense the hearts aflutter and knees atremble in chambers up and down the country as he caressed the precedents and drove his points home with firm but gentle force. Expect the CSI-effect to kick in during the next round of university applications – an upswing in applications to law schools from 18-year-olds who suddenly really want to be constitutional lawyers. There is, in contrast, no such thing as the Eadie effect.
Where Pannick was a gallant schooner expertly managing the light zephyrs wafted his way by the assembled justices, deftly avoiding the gentle sandbanks and glittering coral reefs to reach his haven, Eadie was an oil-bespattered tramp steamer buffeted by blizzards, bouncing of rocks and barely making it into port.
He found his craft beached in his final gasping moments on a very poor (and probably unconstitutional) point in which he seemed to suggest the Justices check what MPs had been doing in the Commons the night before (passing the Brexit motion) and somehow take it into account in their judgment.
But what if (one can put it no higher) – what if Eadie turns out to be right? Even half right might be good enough. So, what does his somewhat incoherent case amount to?
The Eadie case
The basic position enunciated by Pannick is that the royal prerogative, used to make and unmake treaties with foreign powers (including the EU – or EEC as it was in 1972 when Britain acceded), cannot be used to override or balk legislation passed by Parliament – which is Britain’s sovereign body. So accession to the EU came as a result of a prerogative action, but the 1972 European Communities Act was required, among other things, to ensure European law would become UK law. Parliament had to oust its own supremacy for this to happen – and in doing so ousted the Governemnt’s Royal Prerogative to withdraw from the EU.
Pannick argued that Parliament intended the people of Britain to have the rights that followed from that Statute – including any later rights such as those resulting from European Court judgments. It follows that the Government cannot issue its exit notice under Article 50 of the Lisbon Treaty without Parliament giving permission for the 1972 Act to be over-ridden. And that permission should be a further Act of Parliament, since only Statutes that have been passed through the two houses of Parliament and signed into law by the monarch are sovereign. A mere vote on a motion does not count.
Eadie’s view, however, is that Parliament has already passed a piece of sovereign legislation, the European Union Referendum Act of 2015. His analysis is that that legislation supersedes the 1972 Act and passed the decision whether people wanted to keep those EU rights to the people themselves.
Funnily enough, he does not in this case ask the Supreme Court to look into the circumstances of the passing of the Act. Constitutionally he can’t of course (the enrolled bill rule Edinburgh and Dalkeith Railway). Courts can only look at and interpret the legislation as passed and published by Parliament, perhaps with a look at Hansard in the case of ambiguity (Pepper v Hart), to see what ministers told Parliament was the intention of the Act.
If they could have looked at parliamentary behaviour, of course, they would have found the intention of the Referendum Act was one of low politics – a pro-EU Tory Government having to throw a biggish bone to their own Eurosceptics while trying to see off a challenge from UKIP. There was no intention that the people would actually back Brexit and favour losing all their EU rights.
But that is all political, and Eadie argued that we should not look at the political issues surrounding the referendum, but the legal effects. The High Court, in dismissing the government case, had treated the referendum as (legally) irrelevant – and had been in error in so doing.
And the 1972 Act? Well, that should be looked at as rather less important than a Statute from the sovereign body of the United Kingdom would normally be regarded. It was a mere “conduit” for the far more constitutionally significant prerogative act of signing a treaty with the EEC. In doing so, the Government (not Parliament) had decided the British people should have all those EU rights, current and prospective. The European Communities Act was merely a means of making it happen.
The Pannick v Neuberger
The President of the Supreme Court, Lord Neuberger, showed some interest in Eadie’s position and offered Pannick a chance to comment on it – but the QC was loth to be diverted from the simple point that the Referendum Act was silent on whether the referendum was advisory so it should be assumed it was advisory. Lord Neuberger put this to him:
“… anyone arguing against you can say it does not say it is not intended to be binding … And it may not be binding on the Government; nobody suggests that the Government is obliged to serve an Article 50 notice, and therefore it is not binding … [but] [t]his Act may be enough for the Government to say: Parliament has ceded the issue, as far as Parliament is concerned, to the people; we can now go ahead [and issue the Article 50 notice].
Pannick understands the point and glosses it thus: “[Y]our Lordship is putting to me it [the Referendum Act] is intended to have a different legal effect, which is to remove what is otherwise the absence of prerogative power on the Government [spot the double negative: he means it would give the Government a power that is otherwise lacking]; should it decide to notify, it is now perfectly entitled to do so, even though it would otherwise have no prerogative power to do so”. Neuberger then says:
“Yes, it basically revives the prerogative power [that had been ousted by the 1972 Act], the point that was being put to you; of course there is nothing to stop Parliament, before the Article 50 notice is served, calling the matter in and reconsidering it; that is a different point.”
Pannick relies on uncertainty in the Referendum Act but the silence of the Act could just as well be taken to suggest the referendum is binding or not binding, depending whom you believe. Or the third position that Neuberger is proposing: that it is a permission for the Government to exercise a renewed prerogative power and to leave the EU – or not to leave and face the political consequences.
One could argue that those consequences might be dire – the wrath of the Daily Mail, Faragistas marching on Parliament, Brexiteers battling it out on the streets, democracy itself at risk. The Prime Minister, with a (restored) prerogative duty and prerogative power to consider and act upon her estimation of what is for the common weal, pro bono publico, might legitimately decide that she must ensure Britain’s exit from the EU rather than risk much worse.
Lord Reed suggests to Pannick that the referendum did indeed have only political effects – and perhaps the courts should stand back and let them play out.
“If you look at it in that way, really, why is the court – what role does the court have to play? There is not a legal issue really that arises here, other than our ensuring that the political actors are operating their roles in a lawful manner.”
He is particularly worried that the Supreme Court “has to effectively compel a Government minister to introduce a bill into Parliament, which is constitutionally a novelty, to say the least”.
The essential problem for Eadie is that there is no precedent for the position he is stating. Lord Kerr suggested that perhaps “a new constitutional principle is in play, by reason of the different contexts”. Eadie is asking for a new piece of judge-made law (paradoxically given the Tory view of judicial “activism”) to cover a new situation.
There is a proud tradition of cases in which prerogative acts are balked by the courts: de Keyser*, Laker Airway, ex parte Fire Brigades Union, some arcane stuff about Newfoundland lobsters; there seemed no willingness to argue that Article 50 was a matter of high state policy and hence not justiciable; the issue at stake hasn’t been thrown up by other referendums (the Alternative Vote referendum legislation was clear what would happen after the vote; in the 1975 EC referendum, people thankfully voted the right way).
The Laker case has similarities in that a Conservative Act of Parliament (Civil Aviation Act 1971) opened the way to cheap cross-Atlantic flights but it had to be combined with the prerogative power regarding international affairs to arrange landing rights in New York. Labour later tried to prevent Laker’s preferential treatment by use of prerogative alone (ie withdrawing the landing rights agreement) but the Court of Appeal ruled it was acting unlawfully – it could not use the Prerogative to reverse the intention of the Act.
Like the Brexit situation, both the Prerogative and a Statute were interlocked – both were required to bring about the desired effect. But with the EU legislation it is not altogether wrong of Eadie to suggest that, unlike in Laker, Prerogative led the way (ie by signing of the 1972 accession treaty) rather than legislation. Could that mean the Brexit case can be distinguished from Laker, that for EU relations the Prerogative, as it were, retains the whip hand, meaning the 1972 European Communities Act is merely subservient and MPs should do as they are told?
It may be so. Lord Neuberger is not averse to creating new law, it must be said (see Daejan). But haven’t we had enough political shocks for one year?
* To aid Baroness Hale: pronounce more or less to rhyme with “razor” (not as in German Kaiser or Keezer) but try and throw in a little guttural thing for the -y-.
• ObiterJ on how far courts can look at parliamentary material to elucidate statutes: here.
• Rachel Jones for the The UK Constitutional Law Blog looks at “The importance of silences in the Brexit appeals” here. She says: “Mr Eadie’s submissions sometimes seemed to stray from divining Parliament’s (implicit) intention to the Court itself creating one.”
• The UK Constitutional Law Blog also has David Howarth on how silence in the statutes might be interpreted here. He notes: “The task for the court is therefore more complicated than choosing between two competing rules. It is not simply to find what parliament has decided. It has to start with whether parliament has decided at all.”
• Prof Mark Elliott looks at the Miller case and notes that “scholars have adopted sharply opposing positions on questions that are quite fundamental in nature”. He looks at the sovereignty issue and the relationships of various parts of Britain’s democratic machinery. Public Law for Everyone is here.
The Neuberger/Pannick exchange in full (Day Three of the case, Page 31 et seq)
Pannick says the Referendum is only advisory.
THE PRESIDENT: [To] advise who, precisely?
LORD PANNICK: Advise both the Government and Parliament.
THE PRESIDENT: Maybe just advise the Government. Parliament was saying: over to you. “Advisory” is not in the statute. We find it in one statement, in a ministerial statement; there are lots of other statements one could look at. It is quite dangerous to look at advisory, but if we are into advisory, I am not sure where it takes us.
LORD PANNICK: But one has an Act of Parliament that simply says: there shall be a referendum; it says nothing more, nothing more. What your Lordship is putting to me is that that is sufficient to overturn, if I am otherwise right, what is a fundamental constitutional principle that the Government, the executive, lacks power on the international plane, to set aside an act of Parliament, the 1972 Act, which is nowhere mentioned in the 2015 legislation. That is the first point: an absolutely fundamental constitutional principle is to be removed, as it were, as an implication; and I would respectfully submit that that would be a very surprising proposition.
THE PRESIDENT: You say as an implication, but that depends how one looks at it; if one looks at the 1972 Act as imposing a fetter by implication on the prerogative, because there is nothing expressly imposing any fetter, then it is not particularly surprising that the fetter is removed by implication.
PANNICK: But the fetter is a fundamental constitutional principle. What your Lordship is putting to me is that such a fundamental constitutional principle, that the executive cannot frustrate or nullify a statutory scheme, can be removed without the clearest of statements, and here we don’t have any statement at all. It is not that my friends [Eadie et al] focus on a particular word, and they say, well, in the constitutional context, the language of the legislation ought to be interpreted in a certain way.
PRESIDENT: But as Lord Bingham said, one doesn’t look at the language so much as the purpose.
LORD PANNICK: With respect, that is not what Lord Bingham says; he says: within the scope of the language. That is what he says.
THE PRESIDENT: But the problem with your argument, and I see the force of what you say, is that in law, and, I repeat this, as a matter of law, the referendum has no effect. I understand your point that it has a political one, but it could be said to be a bit surprising that in a flexible constitution, an act such as the Referendum Act and an event such as the referendum, has no effect as a matter of law.
LORD PANNICK: But that, with respect, begs the question [he means “raises the question”; tut tut]: what is it that the referendum was designed to achieve. It is open to Parliament to institute a referendum which does have a binding legal effect, and there are many, many examples of where Parliament has done so. Parliament has deliberately chosen a model which does not involve any binding legal effect, and it is a perfectly coherent statutory scheme for Parliament to say that: it is very important that the people be given a voice; this is a highly contentious political issue, and before any steps are taken as to the future of the UK’s membership of the EU, the voice of the people should be heard. That is not an event of no significance, but it begs the question [see above]: what is to be the consequence?
THE PRESIDENT: I quite accept, just as much as you can say, quite rightly, that it doesn’t tell us that the effect is intended to be binding; so anyone arguing against you can say it does not say it is not intended to be binding; and one comes back to Lord Mance’s point, that one has to look at the act, your point in terms of its language; but one also has to look at its consequence. And it may not be binding on the Government, nobody suggests that the Government is obliged to serve an Article 50 notice, and therefore it is not binding. In the other acts you refer to, it is not merely binding, it is binding on the Government. This Act may be enough for the Government to say: Parliament has ceded the issue, as far as Parliament is concerned, to the people; we can now go ahead.
LORD PANNICK: So the argument being put to me is that the 2015 Act does not have any binding force as against the Government. It doesn’t commit the Government. And no one could, I think, seriously suggest it does commit the Government to notify – the Government could say, we have decided, actually, we don’t … But nevertheless your Lordship is putting to me it is intended to have a different legal effect, which is to remove what is otherwise the absence of prerogative power on the Government, should it decide to notify, it is now perfectly entitled to do so, even though it would otherwise have no prerogative power to do so.
PRESIDENT: Yes, it basically revives the prerogative power, the point that was being put to you, of course there is nothing to stop Parliament, before the Article 50 notice is served, calling the matter in and reconsidering it; that is a different point.
LORD PANNICK: I am coming on, if I may, to the question of parliamentary involvement.