Yalland and Others v Secretary of State for Exiting the European Union
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones |
| Judgment Date | 03 February 2017 |
| Neutral Citation | [2017] EWHC 630 (Admin) |
| Docket Number | CO/6524/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 February 2017 |
[2017] EWHC (Admin) 630
Lord Justice Lloyd Jones
Mr Justice Lewis
CO/6524/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr G Peretz and Mr R De Mello (instructed by Marcus Sinclair LLP) appeared on behalf of the Claimants
Mr J Eadie QC and Miss J Morrison (instructed by Government Legal Department) appeared on behalf of the Defendant
This is the judgment of the court to which both members have contributed.
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.
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 Y and Mr W 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."
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.
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."
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.
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.
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."
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…"
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.
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."
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."
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.
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.
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… "
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.
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.
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.
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.
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.
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...
To continue reading
Request your trial
-
Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998
...case is, they submit, not even one of particular difficulty. 52 In support of that submission, counsel cite Yalland v Secretary of State for Exiting the European Union [2017] EWHC 630 (Admin). That case concerned challenges by a number of individuals to a decision by the United Kingdom Gov......
-
R the Police Superintendents' Association v HM Treasury
...to the statement of principle of Lloyd-Jones LJ (as he then was) in R (Yalland) v Secretary of State for Exiting the European Union [2017] EWHC 630 (Admin), para 19 that “[w]hether any legislation is to be introduced and the form it is to take is entirely a matter for Parliament itself, an......
-
McCord (Raymond), JR83 and Jamie Waring's Applications v The Prime Minister and others
...factual and legal finality. This was expressed by Lloyd Jones LJ in R (Yalland) v Secretary of State for Exiting the European Union [2017] EWHC 630 (Admin): “[23] As a general rule, the courts are concerned in judicial review with adjudicating on issues of law that have already arisen for ......
-
McCord (Raymond), JR 83 and Jamie Waring's Applications v The Prime Minister and others
...assertion is not sufficient to discharge that burden. (c) Relying on R (Yalland) v Secretary of State for Exiting the European Union [2017] EWHC 630 (Admin) and Re Kelly’s Application [2018] NIQB 8, at [9] the Judge set out the legal principles in relation to prematurity. He noted that in Y......