QUEEN'S BENCH DIVISION
Strand, London. WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
LORD JUSTICE SALES
| The Queen on the application of (1) Gina Miller &
(2) Deir Tozetti Dos Santos
|- and -
|The Secretary of State for Exiting the European Union
|(1) Grahame Pigney & Others (2) AB, KK, PR and Children
|Mr George Birnie & Others
Dominic Chambers QC, Jessica Simor QC and Benjamin John (instructed by Edwin Coe LLP) for the 2nd Claimant
H. M. Attorney-General, James Eadie QC, Jason Coppel QC, Tom Cross and Christopher Knight (instructed by Her Majesty's Government) for the Defendant Secretary of State
Helen Mountfield QC, Gerry Facenna QC, Tim Johnston, Jack Williams and John Halford (instructed by Bindmans LLP) for the 1st Interested Parties
Manjit Gill QC, Ramby De Mello and Tony Muman (instructed by Bhatia Best Solicitors) for the 2nd Interested Parties
Patrick Green QC, Henry Warwick, Paul Skinner and Matthieu Gregoire (instructed by Croft Solicitors) for the Interveners
Hearing dates: 13th, 17th and 18th October 2016
Crown Copyright ©
Lord Thomas of Cwmgiedd CJ, Sir Terence Etherton MR and Sales LJ:
(a) The question for the court
(b) The common ground that the question is justiciable
(c) The parties to the proceedings to resolve the legal question
(d) The scheme of the judgment
(1) Article 50 of the TEU (paragraphs 9-17)
(2) The principles of constitutional law: the sovereignty of Parliament and the prerogative powers of the Crown (paragraphs 18-36)
(3) The domestic effect of EU law under the ECA 1972 (paragraphs 37-56)
(4) Categories of rights arising under the ECA 1972 and EU law (paragraphs 57-66)
(5) UK legislation in relation to the EU subsequent to the ECA 1972 (paragraphs 67- 72)
(6) The parties' principal submissions (paragraphs 73-76)
(7) Our decision on the question (paragraphs 77-104)
(8) The Referendum Act 2015 (see paragraphs 105-108)
(9) Conclusion and form of declaratory relief (paragraphs 109-111)
(1) Article 50 of the TEU
(a) The terms of Article 50
"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, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
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.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49."
(b) Common ground: notice is irrevocable and cannot be conditional
(c) The effect of the notice
(d) Is the challenge by the claimants a challenge to the decision to withdraw or giving of the notice?
(2) The principles of constitutional law: the sovereignty of Parliament and the prerogative powers of the Crown
(a) The United Kingdom constitution
(b) The sovereignty of the United Kingdom Parliament
"the right to make or unmake any law whatever; and further, that no person or body is recognised by the law ... as having a right to override or set aside the legislation of Parliament."
(p. 38 of the 8th edition, 1915, the last edition by Dicey himself; and see chapter 1 generally).
Amongst other things, this has the corollary that it cannot be said that a law is invalid as being opposed to the opinion of the electorate, since as a matter of law:
"'The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors." (ibid. pp. 57 and 72).
"The bedrock of the British constitution is ... the supremacy of the Crown in Parliament."
(c) The Crown's prerogative powers
"The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute."
"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"
"the King hath no prerogative, but that which the law of the land allows him."
"Suspending power - That the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall.
Late dispensing power - That the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath beene assumed and exercised of Sate is illegall."
"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...''
These principles are not only well settled but are also common ground. It is therefore not necessary to explain them further.
(d) The power under the Crown's prerogative to make and unmake treaties
(e) The effect of Treaties on the domestic law of the United Kingdom
"It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law. That was firmly established by this House in Cook v. Sprigg  AC 572, 578, and was succinctly and convincingly expressed in the opinion of the Privy Council delivered by Lord Kingsdown in Secretary of State in Council of India v. Kamachee Boye Sahaba (1859) 13 Moo. P.C.C. 22, 75:
"The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make."
On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law: see Blackburn v, Attorney-General  1 WLR 1037. The Sovereign 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; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts:" Rustomjee v. The Queen (1876) 2 Q.B.D. 69, 74, per Lord Coleridge C.J.
That is the first of the underlying principles. The second is that, 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 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 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."
We would add that treaties can have certain indirect interpretive effects in relation to domestic law, such as those discussed in R v Lyons  UKHL 44;  1 AC 976 at -; but this does not affect the basic position that the Crown cannot through the use of its prerogative powers increase or diminish or dispense with the rights of individuals or companies conferred by common law or statute or change domestic law in any way without the intervention of Parliament.
(f) The relevance of the principles to the question in the case
(3) The domestic effect of EU law and the ECA 1972
(a) The forms of EU law and the role of the Court of Justice of the European Union
(b) The need for the ECA 1972 and its effect on the law of the United Kingdom
(c) The ECA 1972 us a constitutional statute
"It may be there has never been a statute having such profound effects on so many dimensions of our daily lives."
He described the ECA 1972 as a constitutional statute, having such importance in our legal system that it is not subject to the usual wide principle of implied repeal by subsequent legislation. Its importance is such that it could only be repealed or amended by express language in a subsequent statute or by necessary implication from the provisions of such a statute. Similarly, the ECA 1972 was described as one of a number of constitutional instruments by Lord Neuberger of Abbotsbury PSC and Lord Mance JSC in R (Buckinghamshire County Council) v Secretary of State for Transport  UKSC 3;  1 WLR 324, at ,
(d) The provisions of the ECA 1972
"An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar".
(At the time of the United Kingdom's accession in 1973, there were three Communities: the European Economic Community, the European Coal and Steel Community and the European Atomic Energy Community. The European Union has succeeded to these three Communities.)
"and any other treaty entered into by the EU (except in so far as it relates to, or could be applied in relation to, the Common Foreign and Security Policy), with or without any of the member States, or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom."
"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; and the expression 'enforceable EU right' and similar expressions shall be read as referring to one to which this subsection applies."
By virtue of this provision all directly applicable EU law is made part of United Kingdom law and is enforceable as such.
"Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision -
(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or
(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;
This provides for subordinate legislation to be promulgated to address those parts of EU law that are not directly applicable in domestic law, in particular to satisfy the requirements of Directives that are intended to be implemented by national measures. If the United Kingdom withdraws from the Treaties pursuant to a notice given under Article 50, this provision would in due course inevitably be deprived of any practical application.
"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
By this provision, as was recognised by the House of Lords in ex p. Factortame Ltd, Parliament legislated to give force and effect to EU law as set out in sections 2(1) and (2) in priority to all primary legislation, past or future.
"For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such In accordance with the principles laid down by and any relevant decision of the European Court)".
(e) The right of withdrawal from the EU
(4) Categories of rights arising under the ECA 1972 and EU law
(a) Category (i): rights capable of replication in the law of the United Kingdom
(b) Category (ii): rights enjoyed in other Members States of the EU
(c) Category (iii): rights that could not be replicated in UK law
(d) The effect of withdrawal of the rights
(5) UK legislation in relation to the EU subsequent to the ECA 1972
(a) The European Communities (Amendment) Act 2008
(b) The European Parliamentary Elections Act 2002
(c) The European Union Act 2011
(d) The European Union Referendum Act 2015
(6) The parties' principal submissions
(1) The question in this case is to be approached on the basis that it is a fundamental principle of the UK constitution that the Crown's prerogative powers cannot be used by the executive government to diminish or abrogate rights under the law of the United Kingdom (whether conferred by common law or statute), unless Parliament has given authority to the Crown (expressly in or by necessary implication from the terms of an Act of Parliament) to diminish or abrogate such rights.
(2) No words can be found under which Parliament has given any such authority either expressly or by necessary implication in the ECA 1972 or subsequent legislation relating to the European Union.
(3) The giving of a notice under Article 50(2) of the TEU would pre-empt any ability of Parliament to decide on whether statutory rights should be changed. The notice would automatically abrogate in due course category (iii) rights and the rights under the 2002 Act; it would remove the category (i) rights as enacted by Parliament in the ECA 1972; and it would remove from Parliament decisions on the maintenance of category (ii) rights.
(4) Ratification by Parliament of a withdrawal treaty made pursuant to Article 50(2) (if any such treaty was agreed between the United Kingdom and the European Union) would not cure the pre-emption, as the effect of giving the Article 50(2) notice would in effect inevitably remove the real decision from Parliament.
(5) Parliament had not given authority by the 2015 Referendum Act for the Crown to give notice of withdrawal under Article 50.
(1) Parliament could choose to leave (or not to abrogate) prerogative power in the hands of the Crown, even if its use would result in a change to common law and statutory rights,
(2) It was clear from ex p. Rees-Mogg that, unless express words could be found in a statute, Parliament could not be taken to have abrogated the Crown's prerogative powers in relation to the EU Treaties so that notice under Article 50(2) could be given with the consequences that followed in the form of either a withdrawal treaty or automatic departure. Alternatively, applying the guidance in De Keyser's Royal Hotel in the context of the EU Treaties, Parliament could not be taken to have abrogated such prerogative power unless by express words in a statute (or possibly by necessary implication from a statute).
(3) No words could be found in the ECA 1972 or any other statute which abrogated that power expressly or by necessary implication.
(4) In particular, it is notable that neither the 2008 Act nor the EUA 2011 restricted the Crown's prerogative power to give a notice under Article 50(2), even though that provision had come into existence by the time they were enacted. On the contrary, both Acts implicitly recognised that such prerogative power existed as no restriction was placed on the power of the Crown to invoke that right exercisable under the TEU, as amended by the Lisbon Treaty.
(5) Nor were there any express words in any United Kingdom legislation that abrogated the Crown's prerogative power to withdraw from the Treaties as distinct from amending them. That was because the intention of Parliament, in particular as appears from the EUA 2011, was directed at restricting the increase in the powers of the European Union and its encroachment on Parliamentary sovereignty, not at restricting the ability to withdraw from the European Union and thereby restoring Parliamentary sovereignty.
(6) As it is likely that any withdrawal treaty would contain a provision requiring ratification, the withdrawal treaty would in any event have to be approved by Parliament by way of the negative resolution procedure in the CRAG 2010 before that occurred; if it contained provisions requiring application in domestic law, primary legislation would also need to be introduced to allow that. This would be consistent with the proper sequencing of the respective functions of the Crown and of Parliament, as had invariably happened in the past: once an EU treaty had been made, domestic law was brought into line by Parliament through legislation and then the treaty was ratified.
(7) Although the 2015 Referendum Act does not itself confer statutory power on the Secretary of State to give notice under Article 50(2), the implication from the fact that the 2015 Referendum Act is silent on the issue whether legislation is required before notice could be given under that Article supported the contention that Parliament accepted the continued existence of the prerogative powers of the Crown to give such notice; it certainly contains no restriction on such prerogative power as may still exist.
(7) Our decision on the legal question
(a) The nub of the contention of the Secretary of State
(b) The approach to the interpretation of the ECA 1972 as a constitutional statute
(c) The principle that the Crown cannot use its prerogative powers to alter domestic law
"It is for Parliament, not the executive, to repeal legislation. The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body."
(d) The Crown's prerogative power operates only on the international plane
"'We find ourselves unable to accept this far-reaching argument [for the claimant]. When Parliament wishes to fetter the Crown's treaty-making power in relation to Community law, it does so in express terms, such as one finds in section 6 of the Act of 1978. Indeed, as was pointed out, if the Crown's treaty-making power were impliedly excluded by section 2(1) of the Act of 1972, section 6 of the Act of 1978 would not have been necessary. There is in any event insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown's prerogative to alter or add to the E.E.C. Treaty.
Would the ratification of the Protocol on Social Policy alter the content of domestic law? The Protocol itself makes clear that it was not intended to apply to the United Kingdom. Nor is the United Kingdom party to the agreement which is annexed to the Protocol. The Protocol is not one of the treaties (which for this purpose includes protocols: see section 1(4)) included within the definition of "the Treaties" in section 1(2) of the Act of 1972. For it is specifically excluded by section 1(1) of the Act of 1993. It follows that the Protocol is not one of the Treaties covered under section 2(1) of the Act of 1972 by which alone Community treaties have force in domestic law. It does not become one of the treaties covered by section 2(1) merely because, by the Union Treaty, it is annexed to the E.E.C. Treaty: see section 1(3) of the Act of 1972."
Mr. Pannick [counsel for the claimant] argues that under paragraph 1 of the Protocol, the United Kingdom has agreed to authorise the other eleven member states to have recourse to the Community institutions for the purpose of giving effect to the Agreement. But this is an obligation on the international plane, not the domestic plane. He further argues that the Protocol may have indirect effect on our domestic law, because some of the matters covered by the Agreement are covered elsewhere in Community law. Thus article 6 of the Agreement, which enshrines the principle of equal pay for equal work, follows the language of article 119 of the E.E.C. Treaty. Accordingly a decision of the European Court of Justice on the meaning of article 6 might affect, so it is said, the application of article 119 so as to influence the development of United Kingdom domestic law.
But in our view, this possible indirect effect is far too slender a basis on which to support Mr. Pannick's argument. We conclude that the Government would not, by ratifying the Protocol, be altering or affecting the content of domestic law without parliamentary approval. For the above reasons we would reject Mr. Pannick's ... argument.'' (emphasis added)
(e) Our conclusion as to Parliament's intention
(1) The long title indicates that Parliament intended that the ECA 1972 was to give effect to the enlargement of the European Communities by the addition of the United Kingdom as a Member State. It is inconsistent with that major constitutional purpose of the Act that the Crown should have power to undo that enlargement by exercise of its prerogative powers.
(2) The heading of section 2 indicates that it is to provide for the implementation of the relevant "Treaties". The "Treaties" referred to are defined in section 1(2) and the most important of them are expressly listed there. It is inconsistent with that specific declared statutory objective that the Crown should have power under its prerogative to remove the United Kingdom from those treaties so that they cannot be implemented.
(3) In our view point (2) refutes the Secretary of State's own textual argument on section 2(1), to the effect that where it refers to all rights, powers, liabilities etc "from time to time created or arising by or under the Treaties" and to all remedies and procedures "from time to time provided for by or under the Treaties", it imports an implied condition that the United Kingdom remains a member of the European Union and is bound by "the Treaties" and the Crown has not withdrawn from "the Treaties" through the exercise of its prerogative power. It is on the basis that there is such an implied condition that the Secretary of State seeks to say that Parliament has chosen to allow the Crown's prerogative powers to withdraw the United Kingdom from the relevant EU Treaties to continue in being. But such a condition is contrary to the express wording of section 2. There is nothing in the constitutional background to warrant reading the words in that way. On the contrary, the constitutional background strongly reinforces the claimants' own suggested interpretation of the provision. Read according to their natural meaning and in their proper context, the words quoted above refer only to EU law rights, remedies and procedures etc that exist in the Treaties themselves or by virtue of EU legislation passed from time to time.
(4) This interpretation of section 2(1) shows that Parliament intended to introduce into domestic law EU rights which were in place and would continue to be in place in relation to the United Kingdom under the relevant Treaties. The fact that Parliament uses the label "enforceable EU right" ("enforceable Community right" in the version of section 2(1) as originally enacted) reinforces the view that this is what Parliament meant to achieve. This reading of the provision is again inconsistent with the existence of any power under the Crown's prerogative to undo those rights by effecting the withdrawal of the United Kingdom from the relevant Treaties.
(5) Section 2(2) also indicates that Parliament believed and intended that it was legislating to give effect to EU law in domestic law and that the effect of its legislation should not be capable of being undone by the Crown through the exercise of its prerogative powers. Section 2(2) confers a power to make subordinate legislation to implement "any EU obligation" of the United Kingdom and to enable "any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties" to be exercised. Read in context and in light of the relevant constitutional background, these words refer only to EU obligations and EU rights which arise from time to time by virtue of the "Treaties" and do not import by implication any condition that such obligations and rights are only to be treated as such for so long as the Crown has not exercised its prerogative powers to withdraw the United Kingdom from the Treaties.
(6) Further, section 2(2) states in sub-paragraph (b) that this statutory power may be exercised to make subordinate legislation for ''the purpose of dealing with matters arising out of or related to any such obligation or rights". On the Secretary of State's argument, this would appear to include making subordinate legislation to deal with the removal of any such EU obligation or EU rights as a result of withdrawal from the EU by virtue of exercise of the Crown's prerogative powers; but the subsection also says that the person exercising the power to make subordinate legislation "may have regard to the objects of the EU" (or "the objects of the Communities", as the subsection stated as originally enacted). This would make little sense if Parliament had intended that the ECA 1972 should be interpreted as the Secretary of State contends.
(7) In our view, section 3(1), relating to the ability to seek references from the CJEU under what is now Article 267 TFEU and the obligation of national courts to determine questions as to the validity, meaning or effect of any EU instrument in accordance with the jurisprudence of the CJEU, is most naturally to be read in context as presupposing the continued applicability of EU law and the EU Treaties in relation to the United Kingdom unless and until Parliament legislates for withdrawal. As with section 2(1) and (2), Parliament cannot be taken to have legislated potentially in vain by this provision, as would be the case if the Crown could itself choose to withdraw the United Kingdom from the European Union without the need for further legislation and thereby strip it of any effect whatever.
(8) Finally, we have already drawn attention to the significance of the fact that the principal EU Treaties which are given effect in domestic law are specifically listed in section 1(2). Section 1(3) provides for Parliamentary control before any ancillary treaty can be made and regarded as a "Treaty" for the purposes of the Act, and hence given effect in domestic law. The Crown cannot simply make and ratify ancillary treaties in the exercise of its prerogative powers and thereby create legal effects in domestic law. It is not compatible with this degree of Parliamentary control - listing the main "Treaties" in the ECA 1972 itself and providing for a high degree of Parliamentary control by way of approval by resolution of both Houses before an ancillary treaty qualifies as a "Treaty" for the purposes of the Act - that Parliament at the same time intended that the Crown should be able to change domestic law by the simple means of using its prerogative power to withdraw the United Kingdom from the Treaties. Moreover, the fact that Parliament's approval is required to give even an ancillary treaty made by exercise of the Crown's prerogative effect in domestic law is strongly indicative of a converse intention that the Crown should not be able, by exercise of its prerogative powers, to make far more profound changes in domestic law by unmaking all the EU rights set out in or arising by virtue of the principal EU Treaties.
(f) The claimants' principal argument
(g) The decisions in De Keyser, Fire Brigades Union and Laker Airways
"The executive cannot exercise the prerogative power in a way which would derogate from the due fulfilment of a statutory duty. To that extent, the exercise of the prerogative power is curtailed so long as the statutory duty continues to exist."
"'This is so: but the Secretary of State cannot use the Crown's powers in this sphere in such a way as to take away the rights of citizens: see Walker v Baird  AC 491."
He held that this was in reality what the Secretary of State was doing (p. 728A). The claimants argued that this short passage supported their primary submission. The context in which Lawton LJ said this was in his discussion regarding the proper interpretation of the primary legislation in issue. It therefore is to be viewed as providing additional support for our analysis rejecting the Secretary of State's submission, since Lawton LJ clearly regarded reference to background constitutional principles as relevant to his interpretation of the legislation.
(h) The Act of Union 1707, the devolution statutes and other statutes
(1) At  the judge notes that it is implicit in the argument of the applicants in the case before him that, were it not for the displacement of the prerogative by the Northern Ireland Act 1998, the use of prerogative power to give notice under Article 50 would be unobjectionable and affirms that position as the appropriate starting point for his analysis. But it is not the appropriate starting point, because a prior question is the effect of the ECA 1972 on domestic law and the Crown's prerogative powers.
(2) At  the judge refers to The Case of Proclamations, but only for the principle that ''the King hath no prerogative, but that which the law of the land allows him". The judgment does not however address the principle that the Crown cannot through its prerogative power change any part of the law of the land; nor is reference made to the Bill of Rights: see paragraphs 28-29 above. Further, counsel for the applicants in the Northern Ireland case argued that there was no need to establish an intention on the part of the legislature to limit the prerogative (see ), which was very different from the submission presented to us. We therefore do not find it surprising that the judge was able to reject the overly broad submission made to him. It follows that when the judge gave consideration to the case law, he did so without having the proper starting point identified.
(3) Finally, at - it is evident that the judge did not have the benefit of the careful analysis of the effect of Article 50 addressed to us. It is therefore again unsurprising that his conclusion at  that notification under Article 50 will only ''probably" ultimately lead to changes in United Kingdom law was arrived at without knowledge it had been accepted before us on all sides that it necessarily will have that effect. The same must be said of his observation that at the point when the application of EU law in the United Kingdom changes, "the process necessarily will be one controlled by parliamentary legislation, as this is the mechanism for changing the law in the United Kingdom." Before us the Secretary of State's positive case was that, if the Crown is entitled to give a notice under Article 50, then when it takes effect to withdraw the United Kingdom front the European Union the effect of existing EU law under the relevant EU Treaties will cease and sections 2(1), 2(2) and 3(1) of the ECA 1972 will be stripped of their effect in domestic law without any requirement of further primary legislation.
(8) The 2015 Referendum Act
(9) Conclusion and form of declaratory relief