England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		03 February 2017

1. LORD JUSTICE LLOYD JONES: This is the judgment of the court to which both members have contributed.
2. There are before us renewed applications for permission to apply for judicial review, permission having been refused by Knowles J on consideration of the papers on 30 December 2016.
3. The claims relate to the European Economic Area Agreement ("the EEA Agreement"). There are, in effect, two sets of claims. The first brought by Mr Yalland and Mr Wilding challenges what is described as:

"The decision or proposed decision to leave the European Economic Area without prior parliamentary authorisation and without observing the requirements governing the giving of notice contained in Article 127 of the EEA Agreement."

4. The thrust of the claim is that the UK Government has allegedly already decided that an automatic consequence of the United Kingdom leaving the European Union is that the EEA Agreement would cease to apply to the United Kingdom and that notification of withdrawal from the EEA Agreement under Article 127 is not required. They contend that that alleged decision is wrong as it is based on a misunderstanding of the effect of the EEA Agreement.
5. The second set of claims involves claims by four individuals who seek to challenge what they describe as:

"The Defendant's attempt to withdraw from the European Union on the assumption that the United Kingdom will no longer be in the EEA without prior approval from HM Treasury and an act of Parliament providing authorisation."

6. The thrust of these Claimants' arguments, as appears from the grounds seeking reconsideration of the refusal of permission and the accompanying skeleton argument, is that the EEA Agreement has been made a part of domestic, that is United Kingdom, law by the European Economic Area Act 1993 ("the 1993 Act") and withdrawal from the EEA Agreement requires an Act of Parliament.
7. We note at the outset that the decision on whether to leave the European Union and the decision on whether to leave the European Economic Area are not matters for this court. They are political matters for others, not judges, to determine.
8. In that regard, we echo the observations of Lord Neuberger in the Supreme Court in R (on the application of) Miller v the Secretary of State for Exiting the European Union [2017] UKSC 5 at paragraph 3:

"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."

9. The United Kingdom is currently a member of the European Union as a party to the Treaty on the European Union ("the TEU") and the Treaty on the Functioning of the European Union ("the TFEU"). The TEU was amended by the Lisbon Treaty, which introduced Article 50. That Article provides, so far as material, that:

"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...

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..."

10. The EEA Agreement is an international treaty to which the European Community, now the European Union, the Member States of the European Union and Iceland, Liechtenstein and Norway are parties.
11. Article 2 provides that for the purposes of the EEA Agreement:

"The term "Contracting Parties" means, concerning the Community and the EC Member States, the Community and the EC Member States, or the Community, or the EC Member States. The meaning to be attributed to this expression in each case is to be deduced from the relevant provisions of this Agreement and from the respective competences of the Community and the EC Member States as they follow from the Treaty establishing the European Economic Community."

12. Articles 126 and 127 of the EEA Agreement provide, so far as material, as follows: "Article 126.

1. The Agreement shall apply to the territories to which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty, and to the territories of Iceland, the Principality of Liechtenstein and the Kingdom of Norway..."

Article 127:

"Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months' notice in writing to the other Contracting Parties."

12. As explained by the Supreme Court in Miller, international treaties do not form a part of the domestic law of the United Kingdom unless incorporated by an Act of Parliament. The European Communities Act 1972 ("the 1972 Act") was the means by which EU law became part of domestic law. As the Supreme Court observed, the 1972 Act provides that the rights, duties and rules derived from EU law should apply in the United Kingdom as part of its domestic law and it also provides for a new constitutional process for making laws in the United Kingdom: see paragraph 62 of Miller.
13. In terms of making rights available in domestic law, that was achieved in the following way. Section 1(2) of the 1972 Act, as amended by the 1993 Act, provides a definition of Treaties for the purposes of the 1972 Act. They include the TEU, the TFEU, the Lisbon Treaty and, following amendment by the 1993 Act, the EEA Agreement.
14. Section 2(1) of the 1972 Act provides for rights derived from those Treaties to be enforceable in domestic law. The sub-section provides as follows:

"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... "

15. In Miller, the Supreme Court decided by a majority of eight to three that the giving of notification under Article 50 of the TEU of withdrawal from the European Union required the authority of primary legislation enacted by Parliament and could not be done by Ministers acting in the exercise of powers derived from the royal prerogative: see Miller at paragraph 101. The Supreme Court was not considering the position in relation to the European Economic Area Agreement.
16. Following the decision in Miller, a bill has been introduced into Parliament which, if enacted in the terms of the draft, will authorise ministers to give notice of withdrawal pursuant to Article 50 of the TEU. In that event, Article 50 provides for a period of up to two years, which can be extended in certain circumstances, for the United Kingdom and the European Union to negotiate and conclude arrangements for the withdrawal, taking account of the future relationship of the United Kingdom with the European Union.
17. It is also understood that a Bill will be introduced which, if enacted, will repeal or amend the 1972 Act. It may be (we do not know) that the Bill or another Bill will be introduced to deal with the remaining provisions of the 1993 Act, which makes other provision in relation to the implementation of the EEA Agreement in domestic law.
18. We emphasise that whether any legislation is to be introduced and the form that any such legislation should take is entirely a matter for Parliament itself and not a matter for the courts. Article 9 of the Bill of Rights provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
19. In this regard, we also draw attention to paragraph 122 of Miller, to R (on the application of) Wheeler v The Prime Minister and the Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 1409 (Admin) and Wheeler v the Office of the Prime Minister and Others [2015] 1 CMLR 15.
20. As it was expressed by the then Master of the Rolls, Sir John Donaldson, in R v Her Majesty's Treasury, Ex parte Smedley [1985] QB 657 at page 666B to D:

"Although the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of Parliament over the judicature which are immaterial for present purposes. It, therefore, behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so. Although it is not a matter for me, I would hope and expect that Parliament would be similarly sensitive to the need to refrain from trespassing upon the province of the courts."

21. Against that background, we turn to the present application. The Claimants seek permission to apply for judicial review. Judicial review is a two stage process. First, the Claimant must obtain permission to bring the claim and then, if permission is granted, the claims will proceed to a final hearing.
22. As a general rule, the courts are concerned in judicial review with adjudicating on issues of law that have already arisen for decision and where the facts are established. The courts will not generally consider cases which are brought prematurely because, at the time the claim is made, the relevant legal or factual events to which the claim relates have not yet occurred.
23. The courts may have jurisdiction to grant what is sometimes referred to as advisory declarations. That is declarations on points of law of general importance where there are important reasons in the public interest for doing so. Even here, the courts proceed with caution.
24. It will rarely be appropriate to consider such issues when they may depend in part on factual matters or future events since until those factual matters are established or the events occur, the courts will not be in a position to know with sufficient certainty what issues do arise in a particular case. Similarly, when matters may depend upon or be affected by future legislation, it would generally not be appropriate to make rulings on questions of law until the precise terms of any legislation are known.
25. In the present case, both sets of claims as originally framed sought rulings in relation to an alleged decision which, on analysis, has not yet finally been reached. This has now been accepted by counsel for the Applicants at the hearing this morning.
26. Furthermore, any legal ruling may well be influenced by future decisions by the United Kingdom Government, the terms of future legislation enacted by the United Kingdom Parliament and possibly the outcome of negotiation at the international level between the United Kingdom and the European Union and the States party to the EEA Agreement.
27. The first set of Claimants sought to challenge what it described as a decision or a proposed decision of the UK Government to leave the EEA without prior authorisation and without observing the formalities stipulated in the EEA Agreement. These Claimants contended that the decision was based on an incorrect understanding of the scope and operation of the EEA Agreement.
28. They sought declarations in the following terms. First:

"It would be unlawful for the Defendant or the Prime Minister to leave the European Economic Area (EEA) and thereby remove or frustrate the rights and obligations conferred under the EEA Act 1983 without prior parliamentary authorisation in the form of an act of Parliament and by serving a withdrawal notice under Article 127 of the EEA Agreement."

29. Secondly, they sought a declaration in the following terms:

"Absent such lawful Article 127 notification, the United Kingdom remains bound as a Contracting Party to the EEA Agreement and must adhere to and abstain from undermining its objectives, including the promotion of the single market."

30. The declaration sought by the Second Claimants was in the following terms:

"The Secretary of State for Exiting the European Union does not have power under the Crown's prerogative to give notice of withdrawal pursuant to Article 127 of the EEA Agreement without an Act of Parliament authorising the giving of such notice. Withdrawal notice under Article 127 must be authorised by Act of Parliament."

31. On the evidence before us, there is at present no final decision of the United Kingdom Government as to how it proposes to act in relation to the EEA Agreement and in particular the steps by which the EEA Agreement might cease to apply to the United Kingdom.
32. By letter dated 20 December 2016, solicitors acting for the Secretary of State initially stated in response to a pre-action claim letter that:

"The UK's membership of the EEA and the various legal and policy issues surrounding that membership remain under active consideration by the Government as part of the broader issues surrounding Brexit. The Government has not, therefore, taken a final position."

33. That position was confirmed in the document entitled "Summary grounds and skeleton argument of the Defendant" dated 12 January 2017. That document stated at paragraph 5(a) that:

"No decision has been taken either to serve or not to serve a notice under Article 127 of the Agreement. Consequently, there is no decision which is amenable to judicial review."

34. More recently, a letter written by solicitors for the Defendant dated 31 January 2017 stated that:

"The Prime Minister has made clear in her statements, as have other ministers, that it is not intended that the United Kingdom remain part of the single market, which is defined to cover both the Member States of the EU and the Member States of the European Free Trade Association."

However, that letter also stated:

"Your clients' claim misconstrues the position of ministers and the impact of their statements, which did not purport to specify what would be the appropriate formal steps to be taken in respect of the EEA Agreement in the light of withdrawal from the EU."

35. The Defendant's skeleton argument for this hearing, served on 2 February 2017, the day before the hearing, states:

"No decision has been taken as to whether, and when, a notice will be served under Article 127 of the EEA Agreement. It also submits that Article 127 is not the only means by which the parties could give effect formally to the termination of the United Kingdom's status as a party to the EEA Agreement."

36. The material relied upon by the Claimants in the first set of judicial review proceedings does not, on analysis, demonstrate that a final decision has been taken as to the mechanism by which the EEA will cease to apply within the United Kingdom.
37. The bulk of the material relied upon by the Claimants predates the letter of 20 December 2016. Some of the material, such as a newspaper article attributing remarks to a Government spokesman, is inherently unlikely to be evidence of a decision by the Government on a matter of significant public interest. Other comments, such as a speech made at a party political conference, need to be read in context. The speech deals primarily with the European Union and notification of withdrawal from that Union under Article 50 of the TEU. There is reference to negotiation to establish a relationship between the United Kingdom and the European Union. In our view, it is not possible to read those generalised comments as a decision of the sort claimed by the Claimants in this case.
38. The Claimants also rely upon statements made in Parliament, most notably a written answer made on 20 December 2016 by The Rt. Hon. Mr Robin Walker MP, the Parliamentary Under-Secretary of State for Exiting the European Union, to a written question to the Defendant. The answer and the question have to be read together and in context. The question reads as follows:

"To ask the Secretary of State for Exiting the European Union what assessment he has made of the potential merits of the UK remaining a member of the European Economic Area."

The answer reads as follows:

"We want to see UK companies having the maximum freedom to trade with and operate in the single market and for EU companies to be able to do the same here. We are currently looking at all the options. To support this work, officials across Government are carrying out a programme of sectoral and regulatory analysis which will identify the key factors for UK businesses and the labour force that will effect our negotiations with the EU. They are looking in detail at over 50 sectors, as well as cross cutting regulatory issues. As the UK is party to the EEA Agreement only in its capacity as an EU Member State, once we leave the European Union, the EEA Agreement will automatically cease to apply to the UK. The model we are seeking is one unique to the United Kingdom and not an off the shelf solution."

39. In our view, it is not possible, reading that answer fairly, as a whole and in context, to regard it as constituting a final decision by the Government on how the Government proposes to end membership of the European Economic Area.
40. That view of the answer is reinforced by the letter from the Defendant's solicitors dated 20 December 2016, the summary grounds and skeleton argument of the Defendant of 12 January 2017 and the skeleton argument of the Defendant served on 2 February, the last of which states that no decision has been taken as to whether and when a notice will be served under Article 127.
41. In our view, therefore, it is not possible to establish at present that a final decision has been taken on the mechanism by which the EEA Agreement will cease to apply to the United Kingdom.
42. It became apparent at the oral hearing this morning that both sets of Claimants now accept that no final decision has been taken as to the mechanism by which the EEA Agreement will cease to apply within the United Kingdom. Accordingly, at this morning's hearing, both sets of Claimants concentrated on their alternative submission and sought to argue that important questions of law arise concerning the status of the EEA Agreement.
43. In its application for reconsideration of the refusal of permission, the first set of Claimants contends that even if there has been no decision, the claim raises important constitutional issues which require clarification, including the extent of the executive's power to terminate or frustrate fundamental rights conferred by Parliament and the interrelationship, if any, between the United Kingdom's departure from the European Union and its obligations under the EEA Agreement.
44. The second set of Claimants in its application for reconsideration of the refusal takes a somewhat different tack. These Claimants assume that the UK Government is proposing to give notice under Article 127 of the EEA Agreement, but repeat the claim for a declaration that the Defendant does not have the power to give notice without an Act of Parliament first being enacted to give it authority to do so.
45. The skeleton argument focuses on the limits of the prerogative, a matter now considered in detail in the Miller judgment. It refers to certain rights derived from provisions of the EEA Agreement and given effect in domestic law by section 2(1) of the 1972 Act and contends that unilateral action by the Defendant without authorisation by Parliament would be unlawful.
46. A separate section of the written skeleton argument in support contends that the Defendant must obtain the approval of the Treasury as well as Parliament because of what they say would be serious financial consequences flowing from withdrawal.
47. In our judgment, the present claims are premature. The relevant legal and factual situations against which the various claims made will need to be assessed have not yet occurred. There is, as yet, no final decision by the Government as to the mechanism by which it considers that the EEA Agreement would cease to apply within the United Kingdom.
48. A Bill is currently before Parliament which, if enacted, will authorise the giving of notification of withdrawal under Article 50 TEU. However, the precise terms of the legislation as finally enacted cannot yet be known. There is as yet no legislation dealing with the repeal of the 1972 Act, including the provisions giving effect within domestic law in the United Kingdom to the rights derived from the EEA Agreement. It is not known whether any legislation will also amend the terms of the 1993 Act.
49. In such circumstances, the court cannot at present identify with precision, first, what, if any, justifiable issues will arise for adjudication by the courts and, secondly, the full factual and legal context in which any such issues will fall to be assessed. The precise terms of any such legislation are likely to have at least a significant bearing on the determination of any such issues.
50. The court cannot be sure which, if any, of the many issues raised by the two sets of Claimants really will require adjudication by the courts. Consequently, in our judgment, the current claims are premature. For that reason, permission to apply for judicial review is refused.
51. For completeness, we note that when refusing permission on the papers, the judge gave a number of reasons for refusing permission. We refuse permission in these claims for the reason that the claims are premature. We do not consider it necessary to comment on each of the reasons given by the judge and we express no view on the correctness of each of those reasons.
52. Finally, we give permission for this judgment to be referred to in legal proceedings in court.
53. LORD JUSTICE LLOYD JONES: Mr Peretz, Mr De Mello, we are very grateful to all counsel in the case for their assistance.
54. Now, are there any matters arising from that before we proceed to the other outstanding matter? (Pause)
55. MR DE MELLO: I was sort of waiting --
56. LORD JUSTICE LLOYD JONES: For the Secretary of State.
57. MR DE MELLO: -- to see if there was going to be any submission as to costs.
58. LORD JUSTICE LLOYD JONES: Yes. Do you have any submissions?
59. MISS MORRISON: Yes. There is no application as to costs.
60. LORD JUSTICE LLOYD JONES: I am sorry?
61. MISS MORRISON: There is no application as to costs.
62. LORD JUSTICE LLOYD JONES: No application.
63. MR DE MELLO: We are entirely content with no order as to costs.
64. LORD JUSTICE LLOYD JONES: Very well. No other matters arising. Thank you very much.