Hilary Term
[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 (Miller)

1st Respondent (Miller)
Jeremy Wright QC, HM
Attorney General

Lord Pannick QC
Rhodri Thompson QC
Lord Keen QC, Advocate
General for Scotland

Anneli Howard
Tom Hickman
James Eadie QC

Professor Dan Sarooshi
Jason Coppel QC


Guglielmo Verdirame


Tom Cross


Christopher Knight


(Instructed by The
Government Legal
Department)

(Instructed by Mishcon de
Reya LLP)




2nd Respondent (Dos
Santos)


Dominic Chambers QC


Jessica Simor QC


Benjamin John


(Instructed by Edwin Coe
LLP)


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)




NI Reference (Agnew and
others)


David A Scoffield QC


Professor Christopher
McCrudden


Professor Gordon
Anthony


(Instructed by Jones
Cassidy Brett Solicitors)




NI Reference (SoS
Northern Ireland)


Tony McGleenan QC


Paul McLaughlin


(Instructed by Crown
Solicitor’s Office)





NI Reference (McCord)


Ronan Lavery QC


Conan Fegan BL





(Instructed by McIvor
Farrell Solicitors)



Ist Interested Party
(Pigney and others)

2nd Interested Party (AB
and others)
Helen Mountfield QC

Manjit Gill QC
Gerry Facenna QC

Ramby De Mello
Professor Robert
McCorquodale

Tony Muman
Stuart Luke
Tim Johnstone

Martin Bridger
David Gregory


Jack Williams


(Instructed by Bindmans
LLP)

(Instructed by Bhatia Best)

1st Intervener (Birnie and
others)

2nd Intervener (Lord
Advocate)
Patrick Green QC

James Wolffe QC, Lord
Advocate
Henry Warwick

Martin Chamberlain QC
Paul Skinner

Douglas Ross QC
Matthieu Gregoire

Duncan Hamilton


Christine O’Neill


Emily MacKenzie
(Instructed by Croft
Solicitors)

(Instructed by Scottish
Government Legal
Directorate)

3rd Intervener (Counsel
General of Wales)

4th Intervener (TWGB)
(Written submissions only)
Richard Gordon QC

Aidan O’Neill QC
Tom Pascoe

Peter Sellar
(Instructed by Welsh
Government Legal
Services Department)

(Instructed by Leigh Day)

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)







Page 3


LORD NEUBERGER, LADY HALE, LORD MANCE, LORD KERR, LORD
CLARKE, LORD WILSON, LORD SUMPTION, LORD HODGE:
Introductory
1.
On 1 January 1973, the United Kingdom became a member of the European
Economic Community (“the EEC”) and certain other associated European
organisations. On that date, EEC law took effect as part of the domestic law of the
United Kingdom, in accordance with the European Communities Act 1972 which
had been passed ten weeks earlier. Over the next 40 years, the EEC expanded from
nine to 28 member states, extended its powers or “competences”, merged with the
associated organisations, and changed its name to the European Community in 1993
and to the European Union in 2009.
2.
In December 2015, the UK Parliament passed the European Union
Referendum Act, and the ensuing referendum on 23 June 2016 produced a majority
in favour of leaving the European Union. UK government ministers (whom we will
call “ministers” or “the UK government”) thereafter announced that they would
bring UK membership of the European Union to an end. The question before this
Court concerns the steps which are required as a matter of UK domestic law before
the process of leaving the European Union can be initiated. The particular issue is
whether a formal notice of withdrawal can lawfully be given by ministers without
prior legislation passed in both Houses of Parliament and assented to by HM The
Queen.
3.
It is worth emphasising that nobody has suggested that this is an inappropriate
issue for the courts to determine. It is also worth emphasising that this case has
nothing to do with issues such as the wisdom of the decision to withdraw from the
European Union, the terms of withdrawal, the timetable or arrangements for
withdrawal, or the details of any future relationship with the European Union. Those
are all political issues which are matters for ministers and Parliament to resolve.
They are not issues which are appropriate for resolution by judges, whose duty is to
decide issues of law which are brought before them by individuals and entities
exercising their rights of access to the courts in a democratic society.
4.
Some of the most important issues of law which judges have to decide
concern questions relating to the constitutional arrangements of the United
Kingdom. These proceedings raise such issues. As already indicated, this is not
because they concern the United Kingdom’s membership of the European Union; it
is because they concern (i) the extent of ministers’ power to effect changes in




Page 4


domestic law through exercise of their prerogative powers at the international level,
and (ii) the relationship between the UK government and Parliament on the one hand
and the devolved legislatures and administrations of Scotland, Wales and Northern
Ireland on the other.
5.
The main issue on this appeal concerns the ability of ministers to bring about
changes in domestic law by exercising their powers at the international level, and it
arises from two features of the United Kingdom’s constitutional arrangements. The
first is that ministers generally enjoy a power freely to enter into and to terminate
treaties without recourse to Parliament. This prerogative power is said by the
Secretary of State for Exiting the European Union to include the right to withdraw
from the treaties which govern UK membership of the European Union (“the EU
Treaties”). The second feature is that ministers are not normally entitled to exercise
any power they might otherwise have if it results in a change in UK domestic law,
unless statute, ie an Act of Parliament, so provides. The argument against the
Secretary of State is that this principle prevents ministers withdrawing from the EU
Treaties, until effectively authorised to do so by a statute.
6. Most of the devolution issues arise from the contention that the terms on
which powers have been statutorily devolved to the administrations of Scotland,
Wales and Northern Ireland are such that, unless Parliament provides for such
withdrawal by a statute, it would not be possible for formal notice of the United
Kingdom’s withdrawal from the EU Treaties to be given without first consulting or
obtaining the agreement of the devolved legislatures. And, in the case of Northern
Ireland, there are certain other arguments of a constitutional nature.
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.
8.
The applicants are supported in their opposition to the appeal by a number of
people, including (i) a group deriving rights of residence in the UK under EU law
on the basis of their relationship with a British national or with a non-British EU
national exercising EU Treaty rights to be in the United Kingdom, (ii) a group
deriving rights of residence from persons permitted to reside in the UK because of
EU rights, including children and carers, (iii) a group mostly of UK citizens residing
elsewhere in the European Union, (iv) a group who are mostly non-UK EU nationals
residing in the United Kingdom, and (v) the Independent Workers Union of Great




Page 5


Britain. The Secretary of State’s case is supported by Lawyers for Britain Ltd, a
group of lawyers.
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.
10. The Attorney General for Northern Ireland supports the Secretaries of State’s
case that no statute is required before ministers can give notice of withdrawal. In
addition, there are interventions on devolution issues by the Lord Advocate on
behalf of the Scottish government and the Counsel General for Wales on behalf of
the Welsh government; they also rely on the Sewel Convention (as explained in
paras 137 to 139 below). They support the argument that a statute is required before
ministers can give notice of withdrawal, as do the advocates for Mr McCord and for
Mr Agnew.
11. We are grateful to all the advocates and solicitors involved for the clarity and
skill with which the respective cases have been presented orally and in writing, and
for the efficiency with which the very substantial documentation was organised. We
have also been much assisted by a number of illuminating articles written by
academics following the handing down of the judgment of the Divisional Court. It
is a tribute to those articles that they have resulted in the arguments advanced before
this Court being somewhat different from, and more refined than, those before that
court.
12. As mentioned in paras 7 and 9 above, the appellant in the English and Welsh
appeal is the Secretary of State for Exiting the European Union, and the Northern
Irish proceedings were brought against the Secretary of State for Exiting the
European Union and the Secretary of State for Northern Ireland. For the sake of
simplicity, we will hereafter refer to either or both Secretaries of State simply as
“the Secretary of State”.




Page 6


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.
15. A Bill was then laid before Parliament, and after it had been passed by both
Houses, it received Royal assent on 17 October 1972, when it became the European
Communities Act 1972. The following day, 18 October 1972, ministers ratified the
1972 Accession Treaty on behalf of the United Kingdom, which accordingly became
a member of the EEC on 1 January 1973.
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.




Page 7


17.
Section 1(2) of the 1972 Act contained some important definitions. “The
Communities” meant the EEC and associated communities (now amended to “the
EU” meaning the European Union). And “the Treaties” and “the Community
Treaties” (now amended to “the EU Treaties”) were the treaties described in
Schedule 1 (which were the existing treaties governing the rules and powers of the
EEC at that time), the 1972 Accession Treaty itself, and “any other treaty entered
into by any of the Communities, with or without any of the member States, or
entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom”.
The use of a capital T in “the Treaties” and in “the EU Treaties” was significant. It
meant that future treaties which were concerned with changing the membership or
redefining the rules of the EEC could only become “Treaties” and “EU Treaties”
and have effect in UK law as such if they were added to section 1(2) by an amending
statute. By contrast, “ancillary” treaties covered other treaties entered into by the
European Union or by the United Kingdom as a treaty ancillary to the EU Treaties.
By virtue of section 1(3), even such an ancillary treaty did not take effect in UK law
unless and until it was declared to do so by an Order in Council which had first to
be “approved” in draft form “by resolution of each House of Parliament”.
18.
Section 2 of the 1972 Act was headed “General Implementation of Treaties”.
Section 2(1) of the 1972 Act was in these terms:
“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 …”
19.
Section 2(2) of the 1972 Act provided that “Her Majesty may by Order in
Council, and any designated Minister or department may by regulations, make
provision” (a) “for the purpose of implementing any Community [now EU]
obligation of the United Kingdom” (which is defined as any obligation “created or
arising by or under the Treaties”) or “enabling any rights … enjoyed … by the
United Kingdom under or by virtue of the Treaties to be exercised”, and (b) for
ancillary purposes, including “the operation from time to time of subsection (1)”.
Subsection (2) has since been amended, but nothing hangs on the amendments for
present purposes. Schedule 2 to the 1972 Act contained “Provisions as to
Subordinate Legislation” in relation to the powers conferred by section 2(2).
20.
Section 2(4) provided as follows:




Page 8


“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 …”
21.
Section 3 of the 1972 Act provided, among other things, for any question as
to the meaning and effect of the Treaties, or as to the validity, meaning or effect of
any “Community instrument” (now “EU instrument”) to be treated as a question of
EU law by the UK courts, and it further provided for such determination to be made
in accordance with principles laid down by the European Court of Justice (“the Court
of Justice”) or, if necessary, to be referred to the Court of Justice.
22.
Part II of the 1972 Act, which contained sections 4 to 12, and incorporated
Schedules 3 and 4, set out a number of statutory repeals and amendments which
were needed to enable UK domestic law to comply with the requirements of EU
law, that is the law from time to time laid down in the EU Treaties, Directives and
Regulations, as interpreted by the Court of Justice.
23.
Following a manifesto commitment made during a general election in 1974,
the UK government decided to hold a referendum on whether the United Kingdom
should remain in the EEC. To that end, it laid a Bill before Parliament which was
duly enacted as the Referendum Act 1975. The referendum pursuant to that Act took
place on 5 June 1975, and a majority of those who voted were in favour of remaining
in the EEC.
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




Page 9


(“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.
25. The Treaty of Lisbon introduced into the EU Treaties for the first time an
express provision entitling a member state to withdraw from the European Union. It
did this by inserting a new article 50 into the TEU. This article (“article 50”)
provides as follows:
“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. …”
26.
In these proceedings, it is common ground that notice under article 50(2)
(which we shall call “Notice”) cannot be given in qualified or conditional terms and
that, once given, it cannot be withdrawn. Especially as it is the Secretary of State’s
case that, even if this common ground is mistaken, it would make no difference to
the outcome of these proceedings, we are content to proceed on the basis that that is
correct, without expressing any view of our own on either point. It follows from this
that once the United Kingdom gives Notice, it will inevitably cease at a later date to
be a member of the European Union and a party to the EU Treaties.
27. After 1975, in addition to the amending statutes referred to in para 24 above,
statutes were enacted to give effect to changes in the way that members of the
European Parliament were selected. The first was the European Assembly Elections
Act 1978, which contained in section 6 a stipulation that no new treaty providing for




Page 10


an increase in the powers of the European Assembly (as it then was) should be
ratified unless approved by an Act of Parliament. This provision was re-enacted as
section 12 of the European Parliamentary Elections Act 2002. Section 1 of the 2002
Act provided for a specific number of Members of the European Parliament
(“MEPs”) for specified regions of the United Kingdom. Section 8 of the 2002 Act
stated that a person was entitled to vote in elections to the European Parliament if
he or she satisfied certain residence requirements, and section 10 identified the (very
limited) categories of people who were disqualified from standing as MEPs.
28.
In addition to adding the Treaty of Lisbon and the TFEU to section 1(2) of
the 1972 Act, the 2008 Act, referred to at the end of para 24 above, contained certain
restrictions on the UK government’s agreement to changes in the rules of the
European Union. Section 5 provided that any treaty which amended the TEU or the
TFEU by altering the competences of the European Union, or which altered the
decision-making processes of the European Union or its institutions in such a way
as to dilute the influence of individual member states, should not be ratified by
ministers “unless approved by Act of Parliament”. Section 6 of the 2008 Act stated
that ministers should not support any decision under certain specified articles of the
TEU and of the TFEU unless both Houses of Parliament had approved a motion
sanctioning that course.
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:




Page 11


“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.”
31.
Following a manifesto commitment in the 2015 general election to hold a
referendum on the issue of EU membership, the UK government laid before
Parliament a Bill which became the 2015 Act. Section 1 provided that “[a]
referendum is to be held” on a date no later than 31 December 2017 “on whether the
United Kingdom should remain a member of the European Union”, and it specified
the question which should appear on the ballot papers. The remaining sections were
concerned with questions such as entitlement to vote, the conduct of the referendum,
rules about campaigning and financial controls.
32. The referendum duly took place throughout the United Kingdom on 23 June
2016, and it resulted in a majority in favour of leaving the European Union.
Ministers have made it clear that the UK government intends to implement the result
of the referendum and to give Notice by the end of March 2017.
33. On 7 December 2016, following a debate, the House of Commons resolved
“[to recognise] … that this House should respect the wishes of the United Kingdom
as expressed in the referendum on 23 June; and further [to call] on the Government
to invoke article 50 by 31 March 2017”.
The main issue: the 1972 Act and prerogative powers
Summary of the arguments on the main issue
34. The Secretary of State’s case is based on the existence of the well-established
prerogative powers of the Crown to enter into and to withdraw from treaties. He
contends that ministers are entitled to exercise this power in relation to the EU
Treaties, and therefore to give Notice without the need for any prior legislation.
Following the giving of Notice by the end of March 2017, ministers intend that a
“Great Repeal Bill” will be laid before Parliament. This will repeal the 1972 Act
and, wherever practical, it will convert existing EU law into domestic law at least
for a transitional period. Under article 50, withdrawal will occur not more than two
years after the Notice is given (unless that period is extended by unanimous




Page 12


agreement among the other member states), and it is intended that the Great Repeal
Bill will come into force at that point.
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.
37.
Following opening remarks made by HM Attorney General, Mr Eadie QC in
his submissions on behalf of the Secretary of State, did not challenge much if any
of the factual basis of these assertions, but he did challenge the conclusions that were
said to derive from them. He argued that the fact that significant legal changes will
follow from withdrawing from the EU Treaties does not prevent the giving of
Notice, because the prerogative power to withdraw from treaties was not excluded
by the terms of the 1972 Act, and that, in any event, “acts of the government in the
exercise of the prerogative can alter domestic law”. More particularly, he contended
that the 1972 Act gave effect to EU law only insofar as the EU Treaties required it,
and that that effect was therefore contingent upon the United Kingdom remaining a
party to those treaties. Accordingly, he said, in the 1972 Act Parliament had
effectively stipulated that, or had sanctioned the result whereby, EU law should
cease to have domestic effect in the event that minsters decided to withdraw from
the EU Treaties.
38. Mr Eadie also relied on the fact that, while statutes enacted since 1972 have
imposed Parliamentary controls over the exercise of prerogative powers in relation
to the EU Treaties, they have not touched the prerogative power to withdraw from
them. Implicitly, therefore, he contended, Parliament has recognised that the power
to withdraw from such treaties exists and is exercisable without prior legislation. Mr
Eadie also suggested that the 2015 Act was enacted on the assumption that the result




Page 13


of the referendum would be decisive. Mr Eadie’s reliance on the legislation since
1972 was largely for the purpose of supporting his argument on the effect of the
1972 Act, but he did raise an argument that the legislation from 1972 to 2015 should
be looked at as a whole. Also, in answer to a question from the Court, he adopted a
suggestion that, even if Parliamentary authority would otherwise have been
required, the 2015 Act and the subsequent referendum dispensed with that
requirement, but he did not develop that argument, in our view realistically.
39. Before addressing these arguments, it is right to consider some relevant
constitutional principles and in particular the Royal prerogative.
The constitutional background
40. Unlike most countries, the United Kingdom does not have a constitution in
the sense of a single coherent code of fundamental law which prevails over all other
sources of law. Our constitutional arrangements have developed over time in a
pragmatic as much as in a principled way, through a combination of statutes, events,
conventions, academic writings and judicial decisions. Reflecting its development
and its contents, the UK constitution was described by the constitutional scholar,
Professor AV Dicey, as “the most flexible polity in existence” - Introduction to the
Study of the Law of the Constitution (8th ed, 1915), p 87.
41. Originally, sovereignty was concentrated in the Crown, subject to limitations
which were ill-defined and which changed with practical exigencies. Accordingly,
the Crown largely exercised all the powers of the state (although it appears that even
in the 11th century the King rarely attended meetings of his Council, albeit that its
membership was at his discretion). However, over the centuries, those prerogative
powers, collectively known as the Royal prerogative, were progressively reduced as
Parliamentary democracy and the rule of law developed. By the end of the 20th
century, the great majority of what had previously been prerogative powers, at least
in relation to domestic matters, had become vested in the three principal organs of
the state, the legislature (the two Houses of Parliament), the executive (ministers
and the government more generally) and the judiciary (the judges). It is possible to
identify a number of seminal events in this history, but a series of statutes enacted
in the twenty years between 1688 and 1707 were of particular legal importance.
Those statutes were the Bill of Rights 1688/9 and the Act of Settlement 1701 in
England and Wales, the Claim of Right 1689 in Scotland, and the Acts of Union
1706 and 1707 in England and Wales and in Scotland respectively. (Northern Ireland
joined the United Kingdom pursuant to the Acts of Union 1800 in Britain and
Ireland).




Page 14


42. The independence of the judiciary was formally recognised in these statutes.
In the broadest sense, the role of the judiciary is to uphold and further the rule of
law; more particularly, judges impartially identify and apply the law in every case
brought before the courts. That is why and how these proceedings are being decided.
The law is made in or under statutes, but there are areas where the law has long been
laid down and developed by judges themselves: that is the common law. However,
it is not open to judges to apply or develop the common law in a way which is
inconsistent with the law as laid down in or under statutes, ie by Acts of Parliament.
43. This is because Parliamentary sovereignty is a fundamental principle of the
UK constitution, as was conclusively established in the statutes referred to in para
41 above. It was famously summarised by Professor Dicey as meaning that
Parliament has “the right to make or unmake any law whatsoever; and further, no
person or body is recognised by the law as having a right to override or set aside the
legislation of Parliament; and, further, that no person or body is recognised by the
law of England as having a right to override or set aside the legislation of
Parliament” - op cit, p 38. The legislative power of the Crown is today exercisable
only through Parliament. This power is initiated by the laying of a Bill containing a
proposed law before Parliament, and the Bill can only become a statute if it is passed
(often with amendments) by Parliament (which normally but not always means both
Houses of Parliament) and is then formally assented to by HM The Queen. Thus,
Parliament, or more precisely the Crown in Parliament, lays down the law through
statutes - or primary legislation as it is also known - and not in any other way.
44.
In the early 17th century Case of Proclamations (1610) 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




Page 15


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 and Forsyth 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.”




Page 16


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.”
49.
In Burmah Oil cited above, at p 101, Lord Reid described prerogative powers
as a “relic of a past age”, but that description should not be understood as implying
that the Royal prerogative is either anomalous or anachronistic. There are important
areas of governmental activity which, today as in the past, are essential to the
effective operation of the state and which are not covered, or at least not completely
covered, by statute. Some of them, such as the conduct of diplomacy and war, are
by their very nature at least normally best reserved to ministers just as much in
modern times as in the past, as indeed Lord Reid himself recognised in Burmah Oil
at p 100.
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




Page 17


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.
53. The second category comprises cases where the effect of an exercise of
prerogative powers is to change the facts to which the law applies. Thus, the exercise
of the prerogative to declare war will have significant legal consequences: actions
which were previously lawful may become treasonable (as in Joyce v Director of
Public Prosecutions [1946] AC 347), and some people will become enemy aliens,
whose property is liable to confiscation. Likewise, in Post Office v Estuary Radio
Ltd [1968] 2 QB 740 the Crown’s exercise of its prerogative to extend UK territorial
waters resulted in the criminalisation of broadcasts from ships in the extended area,
which had previously been lawful. These are examples where the exercise of the
prerogative power alters the status of a person, thing or activity so that an existing
rule of law comes to apply to it. However, in such cases the exercise has not created
or changed the law, merely the extent of its application.
54. The most significant area in which ministers exercise the Royal prerogative
is the conduct of the United Kingdom’s foreign affairs. This includes diplomatic




Page 18


relations, the deployment of armed forces abroad, and, particularly in point for
present purposes, the making of treaties. There is little case law on the power to
terminate or withdraw from treaties, but, as a matter of both logic and practical
necessity, it must be part of the treaty-making prerogative. As Lord Templeman put
it in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2
AC 418, 476, “[t]he Government may negotiate, conclude, construe, observe,
breach, repudiate or terminate a treaty”.
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




Page 19


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.”
57.
It can thus fairly be said that the dualist system is a necessary corollary of
Parliamentary sovereignty, or, to put the point another way, it exists to protect
Parliament not ministers. Professor Campbell McClachlan in Foreign Relations Law
(2014), para 5.20, neatly summarises the position in the following way:
“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.”
58. While ministers have in principle an unfettered power to make treaties which
do not change domestic law, it had become fairly standard practice by the late 19th
century for treaties to be laid before both Houses of Parliament at least 21 days
before they were ratified, to enable Parliamentary objections to be heard. In 1924,
following an indication by the previous government that it did not regard itself as
bound by the practice, Arthur Ponsonby, the Parliamentary Under-Secretary of State
for Foreign Affairs, assured the House of Commons that ministers would in future
adhere to this practice, which became known as the Ponsonby Convention. The
convention was superseded and formalised by section 20 of the Constitutional
Reform and Governance Act 2010. However, by virtue of section 23(1) of that Act,
this section does not apply to new EU Treaties, because they are governed by the
more specific statutory controls discussed in paras 28 and 29 above.
59. With that background, we turn to analyse the effect of the 1972 Act and the
arguments as to whether, in the absence of prior authority from Parliament in the
form of a statute, the giving of Notice by ministers would be ineffective under the
United Kingdom’s constitutional requirements, as it would otherwise impermissibly
result in a change in domestic law.
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




Page 20


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.
61.
In one sense, of course, it can be said that the 1972 Act is the source of EU
law, in that, without that Act, EU law would have no domestic status. But in a more
fundamental sense and, we consider, a more realistic sense, where EU law applies
in the United Kingdom, it is the EU institutions which are the relevant source of that
law. The legislative institutions of the EU can create or abrogate rules of law which
will then apply domestically, without the specific sanction of any UK institution. It
is true that the UK government and UK-elected members of the European
Parliament participate in the EU legislative processes and can influence their
outcome, but that does not diminish the point. Further, in the many areas of EU
competence which are subject to majority decision, the approval of the United
Kingdom is not required for its legislation to take effect domestically. It is also true
that EU law enjoys its automatic and overriding effect only by virtue of the 1972
Act, and thus only while it remains in force. That point simply reflects the fact that
Parliament was and remains sovereign: so, no new source of law could come into
existence without Parliamentary sanction - and without being susceptible to being
abrogated by Parliament. However, that in no way undermines our view that it is
unrealistic to deny that, so long as that Act remains in force, the EU Treaties, EU
legislation and the interpretations placed on these instruments by the Court of Justice
are direct sources of UK law.
62. The 1972 Act did two things which are relevant to these appeals. First, it
provided that rights, duties and rules derived from EU law should apply in the United
Kingdom as part of its domestic law. Secondly, it provided for a new constitutional
process for making law in the United Kingdom. These things are closely related, but
they are legally and conceptually distinct. The content of the rights, duties and rules
introduced into our domestic law as a result of the 1972 Act is exclusively a question
of EU law. However, the constitutional processes by which the law of the United
Kingdom is made is exclusively a question of domestic law.




Page 21


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 Pêcheur 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.
65.
In our view, then, although the 1972 Act gives effect to EU law, it is not itself
the originating source of that law. It is, as was said on behalf of the Secretary of
State echoing the illuminating analysis of Professor Finnis, the “conduit pipe” by
which EU law is introduced into UK domestic law. So long as the 1972 Act remains
in force, its effect is to constitute EU law an independent and overriding source of
domestic law.




Page 22


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




Page 23


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
69. Although article 50 operates on the plane of international law, it is common
ground that, because the EU Treaties apply as part of UK law, our domestic law will
change as a result of the United Kingdom ceasing to be party to them, and rights
enjoyed by UK residents granted through EU law will be affected. The Divisional
Court concluded that, because ministers cannot claim prerogative powers to take an
action which would result in a change in domestic law, it was not open to ministers
to withdraw from the EU Treaties, and therefore to serve Notice, without
authorisation in a statute. In that connection, the Divisional Court identified three
categories of right:
(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.
70. Many current EU rights fall within the first category. They include, for
instance, the rights of UK citizens to the benefit of employment protection such as
the Working Time Directive, to equal treatment and to the protection of EU
competition law, and the right of non-residents to the benefit of the “four freedoms”
(free movement of people, goods and capital, and freedom to provide services).
Some of these rights have already been embodied in UK law by domestic legislation
pursuant to section 2(2) of the 1972 Act, and they will not cease to have effect upon
the United Kingdom’s withdrawal from the European Union (unless the domestic
legislation giving effect to them is repealed in accordance with the law), although
the Court of Justice will no longer have any binding role in relation to their scope or
interpretation. Other rights, arising under EU Regulations or directly under the EU
Treaties, will cease to have effect upon withdrawal (save in relation to rights and
liabilities already accrued), but many could be rep